dismissed O-1B Case: Horse Training

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-C-A-I-A-C-H-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 16, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, self-described as a land, cattle, investments, and cutting horses business, seeks to 
classify the Beneficiary as a foreign national of extraordinary ability in the arts. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i). The Director, Vermont 
Service Center, denied the petition. The matter is now before us on appeal. The appeal will be 
dismissed. 
The Petitioner requests that the Beneficiary be granted 0-1 B classification so that it may employ her 
as a horse trainer and groom for a period of three years. 1 The Director denied the petition, finding that 
the Petitioner did not demonstrate that the Beneficiary qualifies as a foreign national of extraordinary 
ability in the arts. The Director determined that the Petitioner did not establish that the Beneficiary 
meets the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), and that the submitted evidence did not meet any of 
the six criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B), of which the Petitioner must satisfy three. 
On September 23, 2014, we dismissed the Petitioner's timely appeal on its merits, asserting that we 
had not received any supplemental brief or additional materials. On October 14, 2014, upon review 
of evidence that the Petitioner had, in fact, timely filed a supplemental brief, we reopened the 
Petitioner's Form 1-290B appeal sua sponte, pursuant to 8 C.F.R. § 103.5(a)(5)(ii), to consider the 
merits of the Petitioner's claims contained in the supplemental brief and exhibits. The Petitioner was 
permitted a period of 30 days in which to provide a revised brief. The Petitioner submitted a revised 
brief and additional copies of the documents previously provided on appeal. 
The issues presented on appeal and in the revised brief include whether the Petitioner properly filed the 
petition under the 0-1 B arts classification, whether the Beneficiary meets three of the six criteria at 
8 C.F.R. § 214.2(o)(3)(iv)(B), and whether consideration of comparable evidence is appropriate. 
1 At the time of filing, the Beneficiary was in the United States pursuant to an approved P-1 S petition. Prior to that, she 
was in the United States pursuant to approved 0-2 and H-28 petitions. 
Matter ofT-H-C-A-1-A-C-H-
I. PERTINENT LAW AND REGULATIONS 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified foreign national 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. 
The regulation at 8 C.F.R. § 214.2(o)(3)(ii) defines the term arts: 
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 arts have different a different standard and evidentiary criteria than athletics. See 59 Fed. Reg. 
41818, 41819 (Aug. 15, 1994); 137 Cong. Rec. S18242, 18247 (daily ed., Nov. 26, 1991) 
(comparing and discussing the "distinction" standard for the arts). Section 101(a)(46) of the Act 
states that the term "extraordinary ability" means, for purposes of section 101(a)(15)(0)(i), in the case 
of the arts, distinction. Pursuant to the definition at 8 C.F.R. § 214.2( o )(3)(ii) pertaining to foreign 
nationals of extraordinary ability in the arts, "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(o)(3)(iv) sets forth the evidentiary criteria to establish a 
beneficiary's prominence in his or her field of endeavor. First, a petitioner can provide a one-time 
achievement (that is, a significant national or international award). If the petitioner does not 
document such an achievement, then a petitioner must include sufficient qualifying material that 
meets at least three of the six categories listed at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l)-(6). If the 
petitioner shows that the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to demonstrate the 
beneficiary's eligibility. 
II. ANALYSIS 
A. Beneficiary's Eligibility under the Requested Classification 
The Petitioner requested classification of the Beneficiary as a foreign national of extraordinary 
ability in the "arts" at 8 C.F.R. § 214.2(o)(3)(iv), and asserted that the Beneficiary meets the 
2 
(b)(6)
Matter ofT-H-C-A-1-A-C-H-
standard of "distinction, " pursuant to the definition at 8 C.F.R. § 214.2(o)(3)(ii)_2 Although the 
Petitioner affirmed that the Beneficiary should be evaluated based upon the standard applicable to 
those engaged in a creative activity or endeavor, the Petitioner's description of the Beneficiary's job 
duties demonstrates that the Beneficiary is engaged, as a horse trainer, in the field of athletics. As 
noted in 8 C.F.R. § 214.2( o )(3)(ii), the definition of "arts" focuses on "any field of creative activity 
or endeavor." While the regulation at 8 
C.F.R. § 214.2( o )(3)(ii) specifically includes animal trainers 
as an example within the field of the arts, this example is specifically in the context of discussing 
essential support personnel who may be considered as engaged in the field of arts because they are 
working in support of an 0-1 B principal. Examples might include trainers for animal acts for stage, 
film, and television productions and for circuses), depending on the facts presented. Other types of 
animal training, however, such as animals engaged exclusively in athletic endeavors that are not in a 
field of creative activity or endeavor, such as the sport of polo, competitive horse racing, or cutting 
competitions, would not be among this group. 
The nature of the intended events or activities in the United States is critical in determining whether 
the Beneficiary is entering the United States to provide services in the arts. Here, as explained in the 
Petitioner 's initial letter, the Beneficiary 's services are required "to train and halter break [the 
Petitioner's] horses to ascertain whether they are able to compete in the 'cutting ' horse 
industry .... " According to the Petitioner , "[c]utting is an equestrian event in the western riding 
style where a horse and rider are judged on their ability to separate a single animal away from a 
cattle herd and keep it away for a short period of time." The Petitioner expressly affirmed that the 
Beneficiary is needed to prepare horses for a "challenging, expensive and highly competitive 
'cutting' sport." The Petitioner also submitted the mission statement ofthe . 
which confirmed that the association "strives to promote cutting horses as a 
competitive sport" and "encourages individuals , families and companies to become involved in the 
sport of cutting." 
On appeal, the Petitioner asserts that "the [B]eneficiary's duties of training a horse lead the horse to 
perform a creative activity, and therefore animal training for a cutting horse competition is a 
'creative activity of [sic] endeavor."' In addition, the Petitioner maintains that, like circuses, cutting 
horse competitions are entertainment. However, attendance by fans for enjoyment applies to all 
sports, and is not determinative as to whether such activity is in a creative field. The Petitioner 's 
characterization of the Beneficiary's specific duties show that she will not create, perform, or serve 
as essential personnel to a "creative activity," but instead will follow and evaluate programs to be 
used to prepare horses used solely for the competitive cutting horse industry, which the Petitioner 
initially described as a "sport." According to the initial cover letter, the Beneficiary previously 
trained horses for polo competitions and was classified as an essential personnel for "two 
professional international athletes." Where, as here, a petitioner seeks to employ a beneficiary as a 
horse trainer for athletic competitions, such as the sport of cutting, extraordinary ability in the arts is 
not the applicable classification. 
2 In our previous decision we found that the Petitioner did not establish that the Beneficiary is primarily involved in a 
creative activity or endeavor, such that she can be classified as a foreign national of extraordinary ability in the arts. 
(b)(6)
Matter ofT-H-C-A-1-A-C-H-
A petitioner sponsoring an 0-1 athlete cannot seek consideration of the petition under the lower 
standard of "distinction" by characterizing the beneficiary's non-creative field as falling within the 
field of arts. The Petitioner has not sought the correct 0-1 visa classification for the Beneficiary, nor 
. has it claimed or documented that the Beneficiary meets the criteria and standards for individuals of 
extraordinary ability in athletics as set forth at 8 C.F.R. § 214.2(o)(iii)(A) or (B). As the 
Beneficiary's occupation does not fall within the 0-1 classification requested on the petition, the 
petition may be denied for this reason alone . Brazil Quality Stones, Inc. v. Chertojf, 286 F. App'x 
963, 965 (9th Cir. 2008). Moreover, the fact that the Petitioner seeks the wrong 0-1 classification is 
fundamental to why the Petitioner may not rely on comparable evidence, as discussed below. 
B. Evidentiary Criteria 
In addition to our finding that the Beneficiary is not engaged in the field of arts, we conclude that the 
Director appropriately reviewed the petition according to the classification requested on the Form I~ 
129. USCIS will only consider the visa classification that a petitioner annotates on the petition . !d. 
at 965. 
The Petitioner does not assert, and the record does not reflect, eligibility under 8 C.F.R. 
§ 214.2( o )(3)(iv)(A) , which requires nomination for or receipt of a significant national or 
international award or prize. Accordingly, the Petitioner must establish the Beneficiary's eligibility 
under at least three of the six evidentiary criteria set forth at 8 C.F.R. § 214.2( o )(3)(iv)(B), or, if these 
criteria do not readily apply to the Beneficiary's occupation, submit comparable evidence under 
8 C.F.R. § 214.2(o)(3)(iv)(C) . See also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) 
(US CIS must examine each piece of evidence "individually and within the context of the totality of 
the evidence , to determine whether the fact to be proven is probably true."). 
The Petitioner claims to have satisfied the criteria listed at 8 C.F.R. § 214.2(o)(3)(iv)(B) 
subparagraphs (1), (3) and (5). These criteria require items to show (1) a performance as a lead or 
starring participant for a production or event with a distinguished reputation , (2) a performance in a 
similar role for organizations or establishments with a distinguished reputation, and (3) significant 
recognition for achievements from organizations, critics, government agencies, or other recognized 
experts. In denying the petition, the Director determined that the evidence submitted met none of the 
six evidentiary criteria. 
After careful review of the record and for the reasons discussed herein, the Petitioner has not shown the 
Beneficiary's eligibility under any of the evidentiary criteria under 8 C.F.R. § 214.2(o)(3)(iv)(B). The 
Petitioner relies on the Beneficiary's past accomplishments working in the polo industry. 
Specifically, she relies on her roles for athletic competitions, jockeys , and polo clubs as well as 
testimonials from those involved in polo. For example, the record contains an August 16, 2010, 
letter from Governor of the which supported a prior petition 
on behalf of the Beneficiary as essential support personnel for a polo athlete. In his letter, 
stated that polo is a competitive sport. Accordingly, irrespective of whether the proposed 
employment in the cutting industry is an art, the Beneficiary's past achievements have all been 
4 
(b)(6)
Matter ofT-H-C-A-1-A-C-H-
within the sport of polo and providing services to polo competitors , whom the Petitioner initially 
characterized as "professional international athletes." The Petitioner has not established that the 
Beneficiary's past experience in the polo industry is indicative of or relevant to the issue of whether 
she is eligible for an 0-1 B (arts) classification or enjoys distinction in the field of arts. In light of the 
above, the Petitioner has not confirmed the Beneficiary's eligibility under at least three of the six 
regulatory criteria listed at 8 C.P.R.§ 214.2(o)(3)(iv)(B). 
The Petitioner also asserts that the Director erred in not also considering the Petitioner's submitted 
exhibits under the "comparable evidence" regulation at 8 C.P.R.§ 214.2(o)(3)(iv)(C). The Petitioner 
is claiming that such material is appropriate because the regulatory criteria for the 0-1 B 
classification in the performing arts are not applicable to the competitive cutting horse industry, 
which the Petitioner and the relevant oversight association, describe as a "sport." As 
discussed above, the Petitioner's attempt to classify the Beneficiary's field as within the arts is 
improper. The comparable evidence provision for the 0-lB (arts) classification pertains to situations 
where the evidentiary criteria to show prominence in the arts do not readily apply to the Beneficiary's 
occupation. This provision is inapplicable to the facts of this case since the Petitioner has not 
established that the Beneficiary has or will work in an artistic field. The Petitioner cannot avoid the 
higher eligibility standard to qualify the Beneficiary as a foreign national of extraordinary ability in 
athletics by claiming the Beneficiary works in the arts and then relying upon the comparable evidence 
provision by arguing that the evidentiary criteria at 8 C.P.R. § 214.2(o)(3)(iv)(B) do not readily apply. 
In this case, the fact that none of the evidentiary criteria apply to the Beneficiary's occupation supports 
the conclusion that the Beneficiary has been and will be employed in the field of athletics rather than the 
arts. 
III. CONCLUSION 
The Petitioner has not shown that the Beneficiary's duties, which consist primarily of evaluating and 
training horses for the competitive cutting horse industry, can properly be considered as a creative 
activity or endeavor falling within the field of the arts. Regardless, the Beneficiary's past achievements 
as essential personnel for athletes do not confirm her eligibility as a foreign national of extraordinary 
ability in the arts. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and altemate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-H-C-A-1-A-C-H- , ID# 10527 (AAO Dec. 16, 2015)