dismissed O-1B Case: Motorcycle Design

· identifYing data deleted to 
prevent clearly unwarranted 
invasion of personal orivacy 
f{lBUCCOP\ 
Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Date: SEP 15 2010 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(O) of the Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(15)(O). 
ON BEHALF OF PETITIONER: 
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 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 to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
erry Rhew 
Chief, Administrative Appeals Office 
www,uscls.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner, a manufacturer of custom motorcycles, filed this petition seeking to classify the beneficiary as 
an 0-1 nonimmigrant pursuant to section I 01(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 
as an alien of extraordinary ability in the arts. The petitioner has employed the beneficiary in 0-1 status since 
August 2008 and seeks to his extend his employment in the position of custom motorcycle designer for one 
additional year. 
On November 5, 2009, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary is an alien of extraordinary ability in the arts as defined at 8 C.F.R. § 214.2(0)(3)(ii). 
Specifically, the director determined that petitioner failed to submit any supporting documentation in response 
to the director's request for evidence, and therefore did not satisfy the evidentiary criterion set forth at 8 
C.F.R. § 214.2(o)(3)(iv)(A) or at least three of the six criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B). The 
director acknowledged the beneficiary's prior 0-1 approvals, but emphasized that each petition must be 
adjudicated on its own merits. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel cites to an April 23, 2004 agency memorandum from William R. 
Yates, which states that in matters related to an extension of nonimmigrant petition validity involving the 
same parties and the same underlying facts, deference should be given to an adjudicator's prior determination 
of eligibility.' Counsel asserts that the director erred by failing to adhere to the guidance provided in the 
Yates memorandum, as "there was no indication that [USCIS] believed that it had determined that there was a 
material error with regard to the previous petition approval, andlor a substantial change in circumstances had 
taken place, andlor there was new material information that adversely impacts the petitioner's or beneficiary'S 
eligibility." Counsel contends that "the case should have been approved based upon the honoring of prior 
adjudications with the same petitioner and beneficiary." [n support of the appeal, the petitioner submits 
among other items, a complete copy of its initial 0-1 petition filed on behalf of the beneficiary in August 2008. 
I. The Law 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary ability in the 
sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international 
acclaim, or, with regard to motion picture and television productions, a demonstrated record of extraordinary 
achievement, and 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(0)(3)(ii) defines, in pertinent part: 
1 Memorandum of William R. Yates, Associate Director for Operations, The Significance of a Prior CIS 
Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility of 
Petition Validity, (April 23, 2004). 
Page 3 
Extraordinary ability in the field of arts means distinction. Distinction means a high level of 
achievement in the field of arts evidenced by a degree of skill and recognition substantially about 
that ordinarily encountered to the extent that a person described as prominent is renowned, 
leading or well-known in the field of arts. 
The evidentiary criteria for aliens of extraordinary ability in the field of arts are set forth at 8 C.F.R. 
§ 214.2(0)(3)(iv). In addition, all 0 nonimmigrant petitions must be accompanied by the evidence set forth at 8 
C.F.R. § 214.2(0)(2)(ii). 
The regulation at 8 C.F.R. § 214.2(0)(11) provides, in pertinent part: 
The petitioner shall file a request to extend the validity of the original petition under section 
IOI(a)(15)(0) of the Act on Form 1-129, Petition for a Nonimmigrant Worker, in order to 
continue or complete the same activities or events specified in the original petition. Supporting 
documents are not required unless requested by the Director. 
The regulation at 8 C.F.R. § 103.2(b)(14) states: 
Effect of request for decision. Where an applicant or petitioner does not submit all requested 
additional evidence and requests a decision based on the evidence already submitted, a decision 
shall be issued based on the evidence of record. Failure to submit requested evidence which 
precludes a material line of inquiry shall be grounds for denying the application or petition. 
The issue in this matter is whether the director appropriately denied the petition based on the petitioner's 
failure to submit any substantive supporting evidence in support of either the initial petition or in response to 
the director's request for evidence ("RFE") issued on September 23, 2009. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on August 13,2009, noting that the 
petition was for an extension of status for continuation of previously approved employment without change 
with the same employer. The petition was accompanied by a copy of the beneficiary's approval notice 
authorizing employment with the petitioner in 0-1 status from August 18, 2008 until August 2009 and a brief 
letter dated July 29, 2009, in which the petitioner stated: 
[The beneficiary 1 is one of the world's of custom motorcycles and has designed 
~Ies for celebrities such 
_ [The beneficiary 1 is currently working fulI time with a salary of a year 
plus bonus. [The petitioner] would like to continue to employ [the beneficiary] as our top 
designer of custom motorcycles on these terms for one year. Thus we are requesting an 
extension of [the beneficiary's 1 0-1 status. 
The director issued a request for additional evidence ("RFE") on September 23, 2009. The director advised 
the petitioner that the initial evidence was deficient and requested that the petitioner submit evidence to 
establish that the beneficiary meets the regulatory criteria for an alien of extraordinary ability in the arts as set 
Page 4 
forth at 8 C.F.R. § 214.2(0)(3)(iv)(A) or (B). The director also requested that the petitioner provide a 
consultation from the national office of an appropriate labor union or from a U.S. peer group, copies of any 
written contracts between the petitioner and beneficiary (or a summary of the terms of the oral agreement 
under which the beneficiary will be employed), and an explanation of the nature of events or activities in 
which the beneficiary will participate. 
In a response dated October 14, 2009, counsel for the petitioner advised the director that the instant petition 
was filed to request an extension of the beneficiary's 0-1 status with his current employer. Counsel 
specifically referred to the above-referenced Yates memorandum to support his assertion that it is uscrs 
policy that prior approvals should be given deference in matters relating to an extension of nonimmigrant 
petition validity involving the same parties and the same underlying facts. 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. 
Counsel further asserted that "[i]n the instant case there has been no material error with regard to the previous 
petition approval, there has been no substantial change in circumstances that has taken place, and there is no 
new material information that adversely impacts the beneficiary's eligibility." Counsel requested that the 
petition be approved and submitted a copy of the Yates memorandum and a copy of the beneficiary's prior 
approval notice. 
The director denied the petition on November 5, 2009, noting that the petitioner failed to submit any of the 
evidence specifically requested in the RFE or any other substantive evidence in support of the petition. 
Therefore, the director determined that the petitioner failed to establish the beneficiary'S eligibility as an alien 
of extraordinary ability in the arts, as it failed to submit any evidence pertaining to the evidentiary 
requirements at 8 C.F.R. § 214.2(0)(3)(iv). With respect to the beneficiary'S prior approval, the director 
stated: 
Counsel seems to be concerned that the Service may not have given deference to the 
beneficiary's prior petition approval. According to the Merriam-Webster dictionary, "in 
deference to" means "in consideration of" The Service would like Counsel to be rest 
assured in knowing that due deference has been given to the beneficiary's prior approval. 
However, "in deference to" means "in consideration of," not necessarily lIin concurrence 
with." Each petition must be adjudicated on its own merits. 
On appeal, counsel once again emphasizes that the instant petition was filed to request an extension of the 
beneficiary's status so that he could continue his 0-1 employment with the same employer. With respect to 
the petitioner's response to the RFE, counsel states that the RFE "was boilerplate and redundant and did not 
take into consideration that the instant petition was an extension request rather than an initial filing." Counsel 
further asserts that the RFE "seemed to be more of a 'fishing expedition' more than one of seeking evidence of 
Page 5 
value to make a proper determiuation," and that such RFEs are prohibited by a 2007 memorandum from 
Donald Neufeld, USCIS Acting Associate Director Domestic Operations2 
Counsel asserts that his response to the RFE adequately detailed the facts of the case and advised the 
reviewing officer of the applicability of the Yates memorandum. Counsel states that there "was no evidence 
provided by Citizenship and Immigration Services in its adjudication that there was a material error with 
regard to the previous petition approval, that there was a substantial change in circumstances, and/or that there 
was new material information that adversely impacted [the beneficiary's] eligibility for an 0-1 visa." 
Counsel further contends that USCIS adjudicated the petition "without any consideration of its own filing 
instructions and directions from its Associate Director of Operations which complimented its own instructions 
for filing 0-1 extension petitions." Counsel also asserts that uscrs "does not understand the difference 
between 'deference' and 'in deference to.'" Counsel emphasizes that the Yates memorandum specifically uses 
the word "deference" which means to "honor," noting that "Mr. Yates states 'should be given deference' not 'in 
deference to.'" Counsel asserts that the petition should have been approved based on the honoring of prior 
adjudications involving the same petitioner and beneficiary. 
In support of the appeal, the petitioner submits a complete copy of the Form 1-129 petition and supporting 
documents it filed on behalf of the beneficiary in August 2008. 
Upon review, counsel's assertions are unpersuasive. The director did not err by denying the petition based on 
the petitioner's failure to submit requested evidence in response to the RFE. 
As noted above, the regulation at 8 C.F.R. § 214.2(0)( 11) provides that supporting documents are not required in 
support of an 0-1 extension request unless requested by the director. The plain language of the regulations gives 
the director the authority to request supporting documentary evidence even in those cases involving an extension 
of status for a beneficiary to continue employment in the same position with the same employer. The regulations 
do not specifY that the director may do so only under specific circumstances. The director clearly had the 
discretionary authority to issue an RFE in this matter. 
The RFE issued in this matter did not instruct the petitioner to submit any evidence that is not specifically set 
forth in the regulations as required evidence to establish eligibility for the requested 0-1 classification pursuant to 
8 C.F.R. §§ 214.2(0)(2)(ii) and (0)(3)(iii). Again, while the director has the discretion to adjudicate an 0-1 
extension petition without such evidence, he is not required to do so. 
Since the director exercised his discretionary authority to issue a request for evidence, the petitioner was 
obligated to submit the requested evidence within the given timeframe. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § \03.2(b)(l4). 
Therefore, the director properly denied the petition based on the petitioner's failure to submit the requested 
documentation in response to the RFE. 
2 See Memorandum of Donald Neufeld, Acting Assoc. Dir., USCIS, Removal of the Standardized Request for 
Evidence Processing Timeframe Final Rule, 8 CFR l03.2(b) (June 1,2007) 
Page 6 
The AAO acknowledges counsel's reliance on the Yates memorandum in support of the proposition that 
USCIS may deny an extension request only when the director can articulate material error, changed 
circumstances or new material information in the Request for Evidence or decision denying the benefit 
sought. While the director did not articulate a material error, a substantial change in circumstances, or receipt 
of new material information that would adversely impact the petitioner'S or beneficiary's eligibility, the 
petitioner's failure to submit the evidence requested in the RFE provided sufficient grounds to deny the 
petition pursuant to 8 C.F.R. § 103.2(b)(l4). Despite any number of previously approved petitions, USCIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act. 
It is worth emphasizing that that each petition filing is a separate proceeding with a separate record. See 8 
C.F.R. § I03.8(d). In making a determination of statutory eligibility, USCIS is limited to the information 
contained in the record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). If a director requests additional 
evidence that the petitioner may have submitted in conjunction with a separate nonimmigrant petition filing, 
the petitioner is, nevertheless, obligated to submit the requested evidence, as the records of the nonimmigrant 
proceedings are not combined. 
Furthermore, given that the record of proceeding contained no substantive evidence relevant to the regulatory 
requirements for the requested classification, it would be impossible for the director to articulate whether the 
approval of the prior petition involved a material error, defined in the Yates memorandum as "the 
misapplication of an objective statutory or regulatory requirement to the facts at hand." As there were 
essentially no facts presented for the director to review or evaluate, no determination of material error could 
reasonably be articulated. It is difficult to imagine a scenario in which a material error in a prior adjudication 
could be discovered without review of the substantive evidence relating to the beneficiary's eligibility for the 
benefit sought. 
Based on the foregoing discussion, the AAO concludes that the director properly denied the petition based on 
the petitioner's failure to submit the evidence requested in the properly issued RFE. Accordingly, the appeal 
will be dismissed. 
The AAO acknowledges that the petitioner has submitted a complete copy of the beneficiary's prior 0-1 
petition and supporting documentation in support of the appeal. The petitioner was put on notice of required 
evidence and given a reasonable opportunity to provide it for the record before the visa petition was 
adjudicated. The petitioner failed to submit the requested evidence and now submits it on appeal. However, 
the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 
1988); MatterofObaigbena, 19 I&N Dec. 533 (BIA 1988). 
The denial of this petition does not preclude the petitioner from filing a new nonimmigrant visa petition, 
supported by the required fee and evidence. As always, the burden remains with the petitioner to establish 
eligibility for the requested visa classification. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has 
not sustained that burden. 
ORDER: The appeal is dismissed.