dismissed O-1B Case: Indian Classical Music

(b)(6)
i' 
._; 
MAR 0 8 2013· 
Date: Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Depaitment,of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s., CltlZensh;r.­
·a.nd !Ifilriigratl6n 
Serviees· · 
FILE: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(l5)(0)(i) of the Immigration and 
Nati~nality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
,. 
' 
. . ~··""·'·· .... J.:C . . 
' 
Ron l~~~·senberg. 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition for a noninimigrant 
visa. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be summarily dismissed. · 
' - -
The petitioner filed this 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 ability in the arts. The petitioner, a self-described non-profit institute for education, 
preservation and promotion of Indian Classical Music (ICM), seeks to employ the beneficiary in the 
position of vocal music teacher for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish ·that the beneficiary 
qualifies as an alien of extraordinary ability in the arts. The director determined that the evidence 
submitted was insufficient to establish that the beneficiary's achievements and recognition have reached 
the level of "distinction" as defmed at 8 C.F.R. § 214.2(o)(3)(ii). The director observed that the 
evidence submitted failed to meet any of the evidentiary criteria set forth at 8 C.F.R. § 
214.2( o )(3)(iv)(A) or (B). \I 
The petitioner subsequently filed ail appeal. The petitioner filed a brief and documentary evidence in 
support ofthe,appeal. The director declined to treat the appeal as a motion and forwarded the appeal to 
the AAO for review. · 
Section 10l(a)(l5)(0)(i) of the Act provides classification to a qualified aiien 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, in pertinent part: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fme 
arts, visual arts, culinary arts, and performing arts. 
. Extraordinary ability in the field of arts means distinction. Distinction means a high 
level of achiev~ment 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) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To qualify as 
an alien of extraordinary ability in the field of arts, the alien must be recognized as being 
· prominent in his or her field of endeavor as demonstrated by the following: 
(A) Evidence that the alien has been nominated for, or the recipient of, significant 
national or international awards or prizes in the particular field such as an 
Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or 
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(B) At least three of the following forms of documentation: 
(1) 
(2) 
(3) 
(4) 
(5) 
(6) 
Evidence that the alien has performed, and will perform, service~ 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; 
Evidence that the alien has achieved national or international recognition 
for achievements evidenced by critical reviews or other published 
material~ by or about the individual in major newspapers, trade journals, 
magazines, or other publications; 
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; 
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; 
Evidence that the alien has received significant recognition for 
achievements from organizations, critics, government agencies, or other 
recognized experts in the .fieid in which the alien is engaged. Such 
testimonials must be in a form which . clearly indicates the author's 
authority, expertise, and knowledge ofthe alien's achievements; or 
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; or 
(C) If 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 m 
order to establish the beneficiary's eligibility. 
On appeal, the petitioner's Form I-290B, Notice of Appeal or Motion, ·indicates that the bases for the 
petitioner's appeal are provided in an accompanying brief. The petitioner's brief states as follows: 
In response to the denial of an '0'- Visa to [the beneficiary] we wish to state the 
following facts ... The criteria: Academy/Emmy/Grammy awards ... are not 
relevant to this art form, ICM . However, [the beneficiary] did receive a 
prestigious award ( as a brilll.ant singer under forty ... 
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As documentary evidence in support of the appeal, the petitioner submitted an award certificate dated 
December 20, 2008, indicating it was issued by the The award 
certificate indicates that at the the beneficiary was given the 
as ' _ Asset 
forth above, if the petitioner establishes through the submission of documentary evidence that the 
beneficiary has been nominated for or has been the recipient of, significant national or international 
awards or prizes in the particular field pursuant to 8 C.F.R. § 214.2(o)(3)(iv)(A), then it will meet its 
burden of proof with respect to the beneficiary's eligibility for 0-1 classification. The regulation 
lists an Academy Award, an Emmy, a Grammy,. or a Director's Guild award as examples of 
qualifying significant awards or prizes. 
The petitioner has not submitted evidence that would establish that the received by 
the beneficiary is an award or prize that rises to the level comparable to an Academy Award or 
Grammy Award, the examples provided in the regulation. The record does not contain sufficient 
evidence regarding the purpose of the award, the application, nominating, or selection process used 
by the issuing body, the eligibility criteria, or the extent to which the winner of such awards is 
recognized beyond the issuing body. The winners and nominees of Emmy and Grammy awards, for 
example, receive significant national and international media attention as the result of their 
recognition, and the awards themselves are considered among the highest achievements attainable in 
the performing arts. Accordingly, the petitioner has not submitted evidence on appeal which 
overcomes the director's finding that it failed to meet the plain language requirements of the criterion 
set forth at 8_C.F.R. § 214.2(o)(3)(iv)(A). 
The petitioner's brief goes onto state: 
... However, the general public and news media are indifferent to [ICM] ... 
Thus, one cannot expect any major US newspaper to cover [the beneficiary's] 
performances ... [The beneficiary's] performance in India did get published in 
some maJor newspapers, but [the beneficiary] was too modest to collect 
them ... 
Regarding these contentions, the petitioner did not specifically indicate which regulatory evidentiary 
criterion it was claiming under 8 C.F.R. § 214.2(o)(3)(iv)(B). Regardless, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
T,reasure Cra.ftofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner's brief further states: 
Besides paying [the beneficiary] $12,000 for 36 weeks, we provided him with 
his airfare, lodging/food/transportation fully, plus $5500 for concert 
performances. 
The petitioner has not establish through the submission of reliable evidence that the beneficiary's 
proffered weekly compens~tion of approximately $333 for 15 hours of work per week meets the 
criteria of a "high salary" for a professional vocal music teacher, such as statistical comparisons of 
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the salaries in the field of endeavor. Accordingly, the petitioner has not submitted evidence on 
appeal which overcomes the director's finding that it failed to meet the plain language.requirements 
ofthe criterion set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
On appeal, the petitioner simply asserts that the beneficiary is qualified for 0-1 classification, 
without addressing how the submitted evidence demonstrates the beneficiary's eligibility under the 
relevant regulatory evidentiary criteria. 
The regulations at 8 C.F.R. § 103.3(a)(l)(v) state, in pertinent part: · 
An officer to whom an appeal is taken shall summarily dismiss any appeal when 
the party concerned fails to identify specifically any erroneous conclusion of law 
or statement of fact tor the appeal. . . 
A review of the decision reveals the director accurately set forth a legitimate basis for denial of the 
petition. On appeal, the petitioner does not specifically identify an erroneous statement .of fact or 
conclusion of law on the part of.the director. The petitioner's general objections to the denial of the 
petition, without specifically identifying any errors on the part of the director, do not address the 
grounds stated for denial of the petition, nor has the petitioner presented additional evidence relevant to 
the grounds for denial. Accordingly, the appeal will be summarily dismissed.· 
In visa petition proceedings, the burden of proving eligibility for the benefit so~ght remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Inasmuch as the petitioner has failed to 
identify specifically an erroneous conclusion of law or a statement of fact in support of the appeal, 
the petitioner has not sustained that burden. 
ORDER: The appeal is summarily dismissed.