dismissed O-1B Case: Fine Arts

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac) 
PUBLIC COpy 
U.S. llepartmcllt of Homeland Security 
U.S. Citizenship and Immigration Service,­
Administrative Appeal" Office (AAO) 
20 Mas"achusetl:--Ave .. N.W., MS 2()l){) 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: SEP 1 3 2012 Office: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(O)(i) of the Immigration allli 
Nationality Act, 8 U.s.c. § 1 101 (a)(15)(O)(i) 
ON LlEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of thc documents 
related to this mailer have heen returned to the office that originally decided your casco Please he advised that 
any runher in4uiry 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 tll reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103,5, All motions must he 
submitted to the onice that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. 
with a fcc or $ti30. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) re4uires that any motion must be riled 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
p Chid, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
Administrative Appeal Ollice (AAO) dismissed the petitioner's subsequent appeal. The maller is now before the 
AAO on a motion to reconsider. The motion will be dismissed, the previous decision of the AAO will he 
affirmed, and the petition will remain denied. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an 0-1 nonimmigrant 
pursuant to section 101(a)(l5)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with 
extraordinary ahility in the arts. The petitioner states that it is engaged in artist representation, digital 
puhlications, and media consultation. It seeks to extend the heneficiary's 0-1 status as an Artist (painter) for one 
year. The heneficiary was initially granted 0-1 classification in 1999 and her status has been extended annually 
since that time. 
The director denied the petition, concluding that the petitioner failed to estahlish that the beneficiary is an alien of 
extraordinary ahility in the arts. The director determined that the petitioner failed to estahlish that the heneficiary 
meets the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), or at least three of the six evidentiary eriteria set 
forth at X C.F.R. § 214.2(0)(3)(iv)(B). The AAO dismissed the petitioner's subsequent appeal on Fehruary 3, 
2011. The petitioner filed a timely motion to reconsider on March 7, 2011. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(I)(iii) requires that the motion must he 
"[aJccompanied hy a statement about whether or not the validity of the unfavorahle decision has been or is the 
subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding." 
Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires that "[aJ motion that does not meet applicahle 
requiremenls shall he dismissed." 
In this case, the petitioner failed to submit a statement addressing whether the validity of the AAO's decision 
has heen or is the subject of any judicial proceeding. Accordingly, the motion will be dismissed pursuant to K 
C.F.R. § 103.5(a)(4). 
Even if the petitioner had met all regulatory requirements for filing a motion to reconsider, the AAO notes 
that the petitioner's assertions on motion would not result in the reversal of the AAO's previous decision. In 
dismissing the petitioner's original appeal, the AAO found that the petitioner failed to establish that the 
heneficiary met at least three of the regulatory criteria pursuant to the regulation at 8 C.F.R. § 
214.2(oJ(3)(iv)(B). The AAO specifically and thoroughly discussed the petitioner'S evidence in its 2t.-page 
decision and determined that the petitioner failed to satisfy the plain language of any the six regulatory 
eriteria. The AAO further concluded that the evidence in the aggregate failed to estahlish that the heneficiary 
is pmminent to the extent that could hc considered renowned, leading or well-known in the field of fine arts. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or U.S. Citizenship and 
Immigration Services (USC/S) policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider contests the 
corrcetness of the original decision based on the previous factual record, as opposed to a motion to reopen 
which seeks a new hearing based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N 
Dec. Y)<J, 403 (l3lA 1991). A motion to reconsider is not a process by which a party may suhmit, in essence, 
the same brief presented on appeal and seck reconsideration by generally alleging error in Ihe prior decision. 
Page J 
On motion, counsel contends: (1) that the AAO erroneously evaluated and discounted evidence submitted to 
satisfy all six of the regulatory criteria at 8 CF,R, § 2142(0)(3)(iv)(B); and (2) that the AAO erred in 
dismissing the appeal when the denial of the petition "contravened the Service IS regulations and the Scrvicc\ 
memorandum of April 23. 2()U4, which requires the Service to give deference to the petitioner's prior approval 
where there is no material change in the underlying facts." 
Counsel contends that the petitioner submitted evidence to meet the plain language of each and every criteria 
at H CF.R. § 214.2(0)(3)(iv)(B), and takes issue with the AAO's determination to the contrary. Counsel 
acknowledges that once the petitioner satisfies the plain language of at least three of the evidentiary criteria, 
USCIS must still make a separate determination as to whether the evidence submitted establishes that the 
heneficiary's degree of skill and recognition is substantially above that ordinarily encountered. to the extent 
that she is recognized as renowned, leading or well-known in the field of the arts. However, counsel docs not 
address how the AAO erred in its final determination that the beneficiary docs not qualify as an alien of 
extraordinary ahility in the arts. 
The Ai\O notes that it would have reached the exact same conclusion regarding the beneficiary's eligihility 
even if it had found that the submitted evidence did satisfy the plain language of three or more of these 
criteria. 
In its merits determination, the AAO observed that the beneficiary enjoyed a degree of national recognition as 
an artist early in her career, but concluded that the record did not support a finding that the beneficiary is 
currently recognized as a leading or well-known artist outside of her local community in California. The 
AAO noted that the petitioner attempted to rely on newspaper reviews from 1981 to meet at least three of the 
evidentiary criteria. and relied primarily on testimonial evidence to meet the remainder of the criteria. The 
AAO emphasized that the statute requires that the alien's achievements "have been recognized in the field 
through extensive documentation." See section 101(a)(15)(0)(i) of the Act. The AAO concluded that "it is not 
reasonable to include the beneficiary among the group of visual artists in the field as leading, renowned or 
well-known if the petitioner does not establish that she has received some form of independent recognition 
hascu on her reputation or achievements in the last 25 years." None of counsel's arguments on motion 
address lhese findings. 
Further. the i\AO docs not agree with counsel that the petitioner did in fact satisfy the plain language of at 
least three of the evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B). For example. with respect to the 
regulatory criteria at H C.F.R. § 214.2(o)(3)(iv)(B)(1), the petitioner is required to submit evidence that the 
beneficiary 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. The AAO found that the petitioner provided evidence that the 
beneficiary's 19H1 group exhibition at the Germany gallery "Art Gable" met the plain language of the 
regulatory criterion with respect to past lead or starring participation in an event or production with a 
distinguished reputation. However, the AAO determined that the petitioner had not submitted evidence in the 
form of critical reviews. advertisements, pUblicity releases, publications, contracts or endorsements to 
establish that the beneficiary will perform services as a lead or starring participant in productions or events 
which have a distinguished reputation. 
Page 4 
Counsel objects to this finding insofar as the AAO declined to consider a planned exhibition of the 
beneficiary's work at the in Prague, Czechoslovakia scheduled for October 200t), The AJ\O 
noted that the event would take place outside of the requested one-year validity period for the extended 
petition and noted that the regulatory language "will perform services" is presumed to refer to future events 
that will occur during the validity of the petition," 
On motion, counsel asserts that "nothing in the regulation states that the event in which an alien will perform 
should be within the one-year validity period for the extended petition," However, the AAO's decision notes 
two other reasons for exclusion of evidence related to the October 2009 event. First, the AAO's decision 
indicates that the October 2009 event was not included in the beneficiary's initial itinerary submitted at the 
time of filing, The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition, J\ 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of tilets, Matter of Michelin Tire Corp" 17 I&N Dec, 248 (Reg, Comm'r 1978), Further, the AAO 
noted that the October 2009 event at MIRO Gallerie was documented only by a letter from the owner of the 
gallery, The AAO specifically observed on page 7 of its decision that letters from the gallery owner regarding 
the beneficiary's past or future participation in productions or events at the do not meet the 
evidentiary requirements described in the plain language of the criterion at 8 C.F,R, § 214.2(o)(3)(iv)(I3)(l), 
With respect to the criterion at H C.F,R, § 214,2(o)(3)(iv)(B)(3), counsel asserts that "the AAO erred in 
diswunting the testimonial from the owner of Miro Gallerie, an establishment with a distinguished reputation, 
that the beneficiary has played and continues to playa lead or critical role in and , , 
improperly imposed requirements beyond those required in the regulations" by requiring more than 
testimonial evidence to meet this criterion, The AAO acknowledged that the petitioner submitted three !cllers 
from attesting to the beneficiary's long-standing relationship with the gallery, but noted that 
the letters themselves failed to clarify the exact nature and extent of the beneficiary's relationship with the 
Even if the petitioner had found that_ vague letters had met the plain language 
of this regulatory criterion, the probative value of such evidence would have been greatly reduced due to the 
lack of any corroborating evidence related to the beneficiary'S previous, current or ongoing with 
the gallery, The AAO noted that the beneficiary'S list of major exhibitions mentions a single 
exhibition in Berlin in 1992, Further the AAO observed that if testimonial evidence lacks specificity, dclail, 
or credihility, there is a there is a greater need for the petitioner to submit corrobative evidence, Matter oj'Y­
B-, 21 I&N Dec. 1136 (BrA 1998), 
Counsel objects to the AAO's finding that two newspaper reviews of the beneficiary'S exhibitions published 
28 years prior to the filing of the petition arc insufficient to establish a "record of major commercial or 
critically-acclaimed successes," pursuant to 8 C.F,R, § 214,2(0)(3)(iv)(B)(4), Specifically, counsel asserts 
that the AAO imposed requirements beyond those stated in the regulations by requiring "recent reports in 
majm newspapers," However, counsel does not acknowledge much less object to the AAO's finding at page 
14 of its decision that a newspaper review of a gallery exhibition docs not rise to the level of a report of an 
"occupational achievement" in the beneficiary's field. 
In addition, counsel contends that the petitioner did in fact establish that the beneficiary has commanded a high 
salary in relation to others in the field in the past and therefore satisfies the plain language or the regulatory 
criterion at 8 C.F,R, 214.2(0)(3)(iv)(B), which requires the petitioner to submit "Cllntracts or other reliable 
Page 5 
evidence" in support 01 its claims. The AAO declined to accept testimonial letters vaguely attesting to the 
heneficiary's "high salary" as "reliable evidence" of the beneficiary's salary in comparison to others, While 
counsel asserts that the AAO was required to establish why such evidence was "unreliable" the AAO notes that 
the director specifically advised the petitioner in a request for evidence of the types of evidence required to satisly 
the regulatory language, and the petitioner failed to provide such evidence. 
There/(nc, although the motion will be dismissed pursuant to 8 C.F.R. § 103.5(a)(4), the AAO confirms that 
review 01 the record docs not establish that the petitioner submitted evidence to satisfy the plain language 01 
at least three 01 the regulatory criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B), nor does the evidence as a whole 
estahlish that the heneficiary has achieved the level of distinction as an alien of extraordinary ahility in the 
arts. 
Finally, the AAO acknowledges that counsel once again relies on a 2004 uscrs memorandum to support her 
assertion that prior approvals of petitions involving the same parties should be given deference. See 
Memorandum 01 William R. Yates, Associate Director for Operations, USCIS: The Significance of a Prior 
CIS Approval of (l Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligihility 
of Petition Validity (April 23, 2004)("Yates Memorandum"). The memorandum provides that exceptions to 
this policy should be made where: (1) it is determined that there was a material error with regard to the 
previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new 
material information that adversely impacts the petitioner's or beneficiary'S eligibility. !d. Once again, the 
AAO ohserves that the Yates Memorandum is addressed to service center and regional directors and not to the 
chief of the 1\1\0. 
The AAO notes that prior approvals do not preclude uscrs from denying an extension of the original visa hased 
on reassessment 01 the petitioner's or beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
55f>, 2004 WL 12404H2 (5th Cir. 20(4). The mere fact that USClS, by mistake or oversight, approved a visa 
petition Dn one occasion docs not create an automatic entitlement to the approval 01 a suhsequent petition I(l[ 
renewal 01 that visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (lst Cir 2(07); see also Matter of Church 
Scienw/ol{y IIll'!., 19 I&N Dec. 593, 597 (Comm'r. 1988). 
Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate 
hurden of proD!'. See H C.F.R. § I03B(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. § 103.2(b)(l6)(ii). The director's 
decision does not indicate whether he reviewed the prior approvals of the other nonimmigrant petitions. 
However, in the present matter, the director reviewed the record of proceeding and concluded that the petitioner 
was ineligible for an extension of the nonimmigrant visa petition's validity hased on the petitioner's failure to 
submit evidence that satisfies the regulatory criteria at 8 c.F.R. § 214.2(0)(3)(iv). In both the request /(If 
evidence and the final denial, the director clearly articulated the objective statutory and regulatory requirements 
and applied them to the case at hand. Despite any number of previously approved petitions, USClS docs not have 
any authority to confer an immigration benefit when the petitioner fails to meet its hurden 01 proof in a 
suhsequent petition. See section 291 of the Act. 
Much of the evidence in the current record consists of letters dated in 1999 and newspaper clippings from the 
19ROs, which we presume were submitted in support of the beneficiary'S initial petition filed in 1999. II the 
Page 0 
prior petitions were approved based on the same evidence, such approvals would constitute material and gross 
erfllr on the part of the director. Neither the director nor the AAO is required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.K. Malter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prim 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
§ 103.5(a)(I)(iv). 
In visa petition proceedings, the hurden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.s.c. 1361. The petitioner has not sustained that burden. Accordingly, the 
motion to reconsider will be dismissed, the AAO's decision dated February 3, 2011 will not he disturbed, and the 
petition will remain denied. 
ORDER: The motion is dismissed.