dismissed O-1B Case: Hair Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-R-P- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 10,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
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PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a banquet hall, seeks to temporarily employ the Beneficiary as a master hair designer. 
To do so, it seeks to classify her 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. See 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: a significant national or international award, at least three of six possible forms of 
documentation, or comparable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(C). 
On appeal, the Petitioner submits additional evidence, contends that the Director did not properly 
consider the record, and maintains that the evidence satisfies the regulatory requirements. In addition, it 
contends that the Director erred in not considering comparable evidence under 8 C.F.R. 
§ 214.2(o)(3)(iv)(C). 
Upon de novo review, we will dismiss the appeal. 
I. .LAW 
As relevant here, section 101(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 define 
"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). 
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Matter of A-R-P- LLC 
Next, DHS regulations set forth the evidentiary criteria for establishing a beneficiary's sustained 
acclaim and the recognition of achievements. A petitioner must submit evidence either of 
"significant national or international awards or prizes" such as "an Academy Award, an Emmy, a 
Grammy, or a Director's Guild Award," or of 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), provides, in pertinent part, that all petitions tor 
0 classification must be accompanied by: 
(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; 
(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. 
II. ANALYSIS 
A. Introduction 
The Petitioner seeks to employ the Beneficiary as a master 
hair designer for private and professional 
events at its banquet facility. The record shows that the Beneficiary has been employed as a hair 
designer specializing in hair styling and coloring . Since 2009, she has worked at a hair salon which 
she owns with her sister in Spain. The Petitioner provided documentation of the 
Beneficiary's receipt of the following provincial and regional hairstyling awards in Spain: 
• (2015) 
• 
(2013) 
• 
(2012) 
• (20 12) 
• 
(2012) 
• (20 11) 
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• 
(2011) 
The record also shows that the Beneficiary participated in continental and world level competitions 
sponsored by the between 20 I 0 and 2012. 
B. The Beneficiary's Eligibility under the Evidentiary Criteria 
The issues presented on appeal and addressed in the brief include whether the Beneficiary meets the 
evidentiary criteria as set forth at 8 C.F.R. § 214.2( o )(3 )(iv)(A) or (B), and whether consideration of 
comparable evidence is appropriate as set forth at 8 C.F.R. § 214.2(o)(3)(iv)(C). Absent evidence of a 
significant national or international award or prize like the Academy Award, the Petitioner seeks to 
demonstrate the Beneficiary's sustained acclaim and recognition of achievements through evidence 
corresponding to the six regulatory criteria at 8 C.F.R § 214.2(o)(3)(iv)(B). The Director determined 
that the Petitioner satisfied only two of the evidentiary criteria: 8 C.F.R § 214.2(o)(3)(iv)(B)(2) 
(published materials) and 8 C.F.R § 214.2(o)(3)(iv)(B)(5) (significant recognition for achievements). 
On appeal, the Petitioner maintains that the evidence also meets the criteria at 8 C.F.R 
§ 214.2(o)(3)(iv)(B)(J), (3), (4), and (6). As discussed below, we conclude that the record satisfies 
only one ofthe relevant criteria, 8 C.F.R § 214.2(o)(3)(iv)(B)(5). 
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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). 
On appeal, the Petitioner contends that the Director erred in not considering its submitted exhibits 
under the "comparable evidence" regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) , because it claims that 
this regulatory criterion is not applicable to hair design. Specifically, it claims that the testimonials it 
provided from recognized experts in the hair design industry satisfy this criterion. We determine 
that the Petitioner has not demonstrated that the letters submitted are comparable to the objective 
requirements ofthis regulatory criterion. 
The Petitioner provided a letter from world president of an international 
hairdressing body. He confirms that the Beneficiary has taught in his organization and competed at 
many international hairstyling championships, including competitions. 
The record also contains letters from , president of the 
and president of the 
of the who attest that the Beneficiary has won awards in provincial and 
regional hairdressing competitions, and represented Spain at 
competitions. They describe her as an expert in the field with extraordinary skills. 
As stated previously, 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)(B) do not readily apply to the 
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Matter of A-R-:P- LLC 
beneficiary's occupation. It is clear from the use of the word "must" in 8 C.F.R. § 214.2(o)(3)(iv), as 
opposed to the word "may" in 8 C.F.R. § 214.2(o)(3)(iv)(C), that the rule, not the exception, is that the 
petitioner is required to submit evidence to meet .at least three of the regulatory criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B). Thus, the use of comparable evidence does not change the standard for the 
classification; a petitioner relying upon comparable evidence must still establish the beneficiary 's 
eligibility by satisfying at least three separate evidentiary criteria as required under the regulations. 
The six criteria in the regulations at 8 C.F.R. § 214.2(o)(3)(iv)(B) are designed to cover different 
areas; not every criterion will apply to every occupation. It is the Petitioner 's the burden to articulate 
why the criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B) do not readily apply and how the evidence submitted 
is "comparable." 
Here, the Petitioner has not established that winning a hair design competition is comparable to a 
lead or starring role for a production or event. In the performing arts, for instance, directors cast 
artists in leading or starring roles prior to the production or event. The promotional materials 
leading up to the production or event typically feature the lead or starring artists. Conversely , a 
competitor receives his or her ranking at the competition and the record does not demonstrate that 
the Beneficiary's participation was featured in promotional materials or highlighted in media 
coverage of the events. We also note that we have examined the evidence relating to the 
Beneficiary's receipt of awards in these competitions below, in our discussion of the criterion at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(5). For these reasons, the Petitioner has not established that achieving 
a favorable result in a hair design competition is comparable to providing services in a lead or 
starring capacity for an artistic production or event. 
Based on the foregoing, the Petitioner has not submitted evidence that the Beneficiary has served as 
a lead or starring participant in productions that have a distinguished reputation. In addition, the 
record does not demonstrate that she will prospectively serve as such a participant. At the time of 
filing, the Petitioner submitted a job offer letter indicating that her duties as a master hair designer 
for its private and corporate events will include hair cutting, coloring , waving, straightening , and 
oiling. It did not, however, offer evidence that would distinguish her role as leading or starring 
within those upcoming events, and did not specifically claim or submit evidence to establish the 
distinguished reputation of those events. 
Evidence that the alien has achieved national or international recognition fiJr 
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). 
To meet this criterion, the Petitioner provided several articles and press releases pertaining to the 
Beneficiary published in the newspapers and The Director 
determined that the Petitioner met this criterion. We conclude that the Petitioner has not established 
that the evidence meets the plain language of this criterion , and we will withdraw the Director's 
i The record indicates that is the successor publication to 
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Matter of A-R-P- LLC 
favorable determination. The record does not contain probative evidence showing that either 
publication qualifies as a "major" newspaper, -trade journal, or other publication. The circulation 
statistics submitted for indicate that it does not have significant national or 
international distribution. but only serves the particular locality of in provmce, 
Spain.2 The record further lacks circulation or distribution information relating to We 
therefore withdraw the Director's favorable determination relating to this criterion. 
Evidence that the· alien has performed, and will perform, in a lead, starring, or critical 
role for organizations and establishments that have a distinguished reputation 
evidenced by articles in newspapers. trade journals. publications, or testimonials. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(J). 
On appeal, the Petitioner contends that the Director erred in not considering its submitted exhibits 
under the "comparable evidence" regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C), asserting that this 
regulatory criterion is not applicable to hair design. Specifically, it claims that the testimonials it 
submitted from recognized experts in the hair design industry, who attest to her awards at 
hairdressing competitions, satisfy this criterion. As noted above, we examine the evidence relating to 
the Beneficiary's receipt of these awards in our discussion of the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(5). Further, it is the Petitioner's burden to articulate how the documentation in 
the record is comparable. The Petitioner has not established that winning a hair design competition 
is comparable to a lead or starring role for an organization or establishment. 
In addition, while the Beneficiary's CV lists her past work for salons in Holland, including 
and the record lacks employment verification letters from 
representatives of those companies establishing that she has held a lead or critical role with respect to 
those establishments. Further, although the Beneficiary's salon has won customer awards in 
province, the record does not demonstrate that the organization has a distinguished reputation in the 
field. 
Based on the foregoing, the Petitioner has not submitted evidence that the Beneficiary has held a 
lead or critical role with respect to an organization or establishment that has a distinguished 
reputation. In addition, the record does not demonstrate that she will prospectively serve as such a 
participant for the petitioning organization. The Petitioner's offer of employment notes that she will 
be working in the role of master hair designer. It has not offered, however, information that would 
elucidate where her proposed position falls in the overall hierarchy of its organization or demonstrate 
her proposed impact on the organization. Finally, the Petitioner did not specifically claim or submit 
evidence to establish that its organization has a distinguished reputation. 
2 
To qualify as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as major media because 
of significant national distribution, unlike small local community papers. 
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Matter of A-R-P- LLC 
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 picture or television ratings, and other occupational 
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 Petitioner's evidence does not satisfy this evidentiary criterion. In 
the Beneficiary's field, evidence satisfying this criterion would reasonably include evidence of 
business revenue. Although the Petitioner has submitted articles published in and 
mentioning the Beneficiary's results in the above-referenced provincial and regional 
competitions and her participation in sponsored continental and world competitions, these / 
materials do not report, for example, her business revenues, which would constitute evidence equivalent 
to "box office receipts" or "motion picture or television ratings" as referenced in the regulation, or 
otherwise provide any factual indicators to establish whether she has achieved "major commercial or 
critically acclaimed success" in the hairdressing industry. 
On appeal, the Petitioner contends that the Director erred in not considering under the "comparable 
evidence" regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) the above-referenced testimonial letters, because 
it claims that this regulatory criterion is not applicable to hair design. Specifically, it argues that the 
provided testimonials from recognized experts in the hair design 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), we determine that the Petitioner has not demonstrated that these letters are 
comparable to the objective requirements of this regulatory criterion. The letters from 
and while attesting that the Beneficiary has won awards in 
provincial and regional hairdressing competitions and .represented Spain in 
compe~itions, do not indicate that winning and participating in the those competitions is 
comparable to a record of major commercial or critically acclaimed successes in the field. In 
addition, although individual clients highly praise the Beneficiary's skills and abilities, these letters do 
not establish her record of successes in the field. 
Evidence that the alien has received sign(ficant 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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(5). 
To meet this criterion, the Petitioner provided several testimonial letters and certificates confirming 
the Beneficiary's receipt of awards in provincial and regional competitions and her participation in 
competitions at the continental and world level. We agree with the Director's determination 
that the awards received by the Beneficiary constitute significant recognition for achievements from 
organizations. Based on these awards, the Petitioner has satisfied this criterion. 
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Matter of A-R-P- LLC 
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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
On appeal, the Petitioner contends that it satisfies this criterion. It 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. Instead, on the Form I-129, the Petitioner indicated it will pay her an annual 
salary of $36,000 for the proffered position of master hair designer. It also explained it will pay her 
other compensation in the form of a "[c]omission of five percent (5%) of business net income if the 
business gross income reaches $1 million." We note that the Petitioner's job offer letter does not state 
that the Beneficiary has the opportunity to earn a commission in addition to her salary. It has not 
submitted documentary evidence to resolve this discrepancy regarding the Beneficiary's 
compensation. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Without such clarification , 
we are precluded from making an accurate assessment of her eligibility under this criterion. 
Assuming that the Beneficiary 's compensation will be $36,000 per year as stated in the job otTer 
letter, the record establishes that this salary is not considered high in relation to others in the tield. 
The Petitioner provided comparative wage data relating to average or median wages of 
"Hairdressers, Hairstylists, and Cosmetologists" in Arizona, the 
metropolitan area from the Foreign Labor Certification (FLC) Data Center's Online Wage Library 
(www.flcdatacenter.com), reflecting that the Level 4 prevailing wage is $28,912 per year. While the 
Beneficiary's salary exceeds the Level 4 prevailing wage for the Petitioner's area, the prevailing wage 
· only reflects 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 proffered salary in the position of master hair designer is a "high salary." 
In sum, based on the foregoing, the record does not contain evidence ofthe Beneficiary's nomination 
for or receipt of a significant national or international award or prize, at least three of six listed 
categories of documents, or that consideration of comparable evidence is appropriate. 8 C.F.R. 
§ 214.2( o )(3)(iv)(A)-(C). 
C. Contract Requirements 
Although not addressed in the Director's decision, the Petitioner has not provided the contractual 
agreement that specifies the wage and the other terms and conditions of the Beneficiary ' s 
employment, or a summary of the terms of the oral agreement between the parties. The regulation at 
8 C.F.R. § 214.2(o)(2)(ii)(B), which applies to all 0 petitions, requires a copy of any written contract 
between the Petitioner and the Beneficiary. If a written contract does not exist, U.S. Citizenship and 
Immigration Services (USCIS) will accept evidence summarizing the terms of the oral agreement 
under which the Beneficiary will be employed, including the wage offered , and confirming that the 
Beneficiary has accepted that offer. An oral contract , as corroborated by the summation of the 
elements of the oral agreement, is enforceable and users will accept the summation as evidence of 
an oral agreement. See generally 8 C.F.R. § 214.2(o)(2)(ii)(B)(stating that a summary ofthe terms 
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Matter of A-R-P- LLC 
of the oral agreement under which the foreign national will be employed must be provided when 
there is no written contract between the parties). Here, the Petitioner has not fultilled this 
requirement. While the record contains its job offer to the Beneficiary, it does not contain a written 
contract between the parties or a summary of the terms of the oral agreement between the parties. In 
addition, as previously discussed, the Petitioner has provided inconsistent information regarding the 
terms of the Beneficiary's compensation in the proposed position. 
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 arts. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-R-P- LLC, ID# 482925 (AAO Aug. 10, 2017) 
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