dismissed O-1B Case: Music

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PUBLIC COpy 
FILE: Office: VERMONT 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: NOV 0 5 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. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. § 
103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont 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 filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant pursuant to section 
1 o 1 (a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as an alien of extraordinary ability in the 
arts. The petitioner is engaged in music production, perfonnance and instruction, and the beneficiary is a jazz 
singer. The petitioner requests that the beneficiary be granted 0-1 classification for a period of three years. 
On September 11,2009, the director denied the petition concluding that the petitioner failed to submit: (1) a 
written consultation from an appropriate labor organization; and (2) 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. 
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, the petitioner submits a consultation letter from the American 
Federation of Musicians. The petitioner further clarifies the nature and scope of the beneficiary's intended 
services in the United States, and asserts that the contract submitted at the time of filing was a "standard 
artistic management agreement" prepared by counsel. The petitioner submits a new summary of the tenns of 
its oral agreement with the beneficiary in support of the appeal. 
I. The Law 
Section 101(a)(15)(0)(i) of the Act, 8 U.S.C. § 110 1(a)(15)(0)(i), provides for the classification of 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 . . . and whose achievements 
have been recognized in the field through extensive documentation, and seeks to enter the 
United States to continue work in the area of extraordinary ability.. .. 
Section 101(a)(46) of the Act states that the tenn "extraordinary ability" means, for purposes of section 
101(a)(l5)(0)(i), in the case of the arts, distinction. Pursuant to the definition at 8 C.F.R. § 2l4.2(0)(3)(ii) 
pertaining to aliens 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(0)(1)(i) provides that under section 101(a)(15)(0) of the Act, a qualified alien 
may be authorized to come to the United States to perfonn services relating to an event or events if petitioned for 
by an employer. 
Pursuant to 8 C.F.R. § 2l4.2(0)(2)(i), an 0-1 petition may only be filed by a United States employer, a United 
States agent, or a foreign employer through a United States agent. An 0 alien may not petition for himself or 
herself. 
Page 3 
The regulatory requirements for agents as petitioners are set forth at 8 C.F.R. § 214.2(0)(2)(iv)(E): 
A United States agent may file a petition in cases involving workers who are traditionally self­
employed or workers who use agents to arrange short-term employment on their behalf with 
numerous employers, and in cases where a foreign employer authorizes the agent to act in its 
behalf. A United States agent may be: The actual employer of the beneficiary, the representative 
of both the employer and the beneficiary, or, a person or entity authorized by the employer to act 
for, or in place of, the employer as its agent. 
Finally, the regulation at 8 C.F.R. § 214.2(0)(2)(ii) provides that petitions for 0 aliens shall be accompanied by 
the following: 
(A) The evidence specified in the particular section for the classification; 
(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. Discussion 
A. Written Advisory Opinion from an Appropriate Consulting Entity 
The first issue addressed by the director is whether the petitioner submitted the required written advisory 
opinion from an appropriate consulting entity. See 8 C.F.R. § 214.2(0)(2)(ii)(D). Pursuant to 8 C.F.R. 
§ 214.2(0)(5)(ii)(A), consultation with a peer group in the area of the alien's ability (which may include a 
labor organization) or a person or person with expertise in the area of the alien's ability, is required in an 0-1 
petition for an alien of extraordinary ability. 
The petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it was submitting a peer 
group consultation from the The petitioner submitted a letter from the 
association's president and artistic director, who stated that the beneficiary is "in the vanguard of her 
profession as a musician and educator. II 
The director issued a request for evidence ("RFE") on January 28, 2009. The director instructed the petitioner 
to submit a written advisory opinion from an appropriate association or entity with expertise in the 
beneficiary'S area of ability. 
Page 4 
In response, the petitioner, through counsel, re-submitted the opinion letter from the 
_ along with a second letter from Dean and Professor with the 
The director denied the petition on September 11, 2009, based on the petitioner's failure to provide a written 
consultation from a labor organization. The director observed that s not 
the appropriate union, labor or management organization for singers." The director noted that "due to the fact 
that the beneficiary will be performing as a jazz singer, and there are labor organizations for singers, the 
requirement for a written consultation from such organization will not be waived." The director noted that 
USCIS had requested a consultation from the American Federation of Musicians on July 30, 2009, but had 
received no response. 
On appeal, the petitioner submits a favorable consultation from the ••••••••••••• which 
was issued on September 24,2009. 
Upon review, the AAO will withdraw the director's determination. The regulation at 8 C.F.R. 
§ 214.2(0)(5)(i)(F) requires the petitioner to submit a written consultation from a peer group, labor 
organization, or from a person or persons with expertise in the beneficiary's field. The petitioner is not 
required to submit a consultation from a labor organization, as long as it submits one of the qualifying forms 
of documentation. In fact, the request that USCIS sent to the on July 30, 
2009 states: "Petitioner has submitted a letter from 
sufficient evidence of consultation from a peer group." 
This has been determined to be 
The regulations require US CIS to request a labor consultation when the petitioner provides an advisory 
opinion from a peer group or from a person or persons with expertise in the beneficiary'S field. Pursuant to 8 
C.F.R. § 214.2(0)(5)(i)(F), the labor organization has 15 days to respond to USCIS' request for an advisory 
opinion, comment or no objection letter. If no response is received within 15 days, USCIS shall render a 
decision without the advisory opinion. Therefore, it was improper for the director to deny the petition based 
on the petitioner's failure to submit a consultation with a labor organization. Under the circumstances, the 
labor consultation should have been waived. Furthermore, the record now contains a favorable consultation 
letter from the Therefore, the AAO will withdraw the director's 
determination that the consultation requirement has not been met. 
B. 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 
The second issue in this matter is whether the petitioner met its burden to describe the nature of the 
beneficiary'S proposed events or activities, the beginning and ending dates for the events or activities, and to 
provide an itinerary pursuant to 8 C.F.R. § 214.2(0)(2)(ii)(C). The director emphasized that, pursuant to 8 
C.F.R. § 214.2(0)(2)(iv)(A) a petition which requires the alien to work in more than one location must include 
an itinerary with the dates and locations of work. 
The petitioner indicated on the Fonn 1-129 that the beneficiary will be employed as a "Jazz Singer" on a full­
time basis. The petitioner requested a three-year approval and indicated that the beneficiary's wages will 
vary "per contract." In a letter submitted in support of the petition, counsel for the petitioner stated that the 
beneficiary "seeks to enter the United States to continue her work as an internationally renowned jazz singer 
and will continue to utilize her unique talents in this field." 
The petitioner submitted a management agreement executed by the petitioner and beneficiary on November 7, 
2008. The agreement provides, in relevant part: 
1. Tenn: The tenn of this Agreement shall be for three (3) years, beginning on the date of 
the 0-1 Visa approval. ... 
2. Services: Company shall (a) assist Artist in the development, negotiation, organization 
and administration of income-producing opportunities and activities and (b) consult with 
and advise Artist regarding the planning and management of Artist's career and related 
business affairs. 
3. Compensation: As full and complete compensation for the Services, Artist will receive 
eighty percent (80%) of perfonning pursues [sic] and will give to the Company the 
remaining twenty percent (20%). Artist will also receive eighty percent (80%) of all 
endorsement and/or sponsorships and will give to the company the remaining twenty 
percent (20%). 
4. Exclusivity: In providing such management and marketing representation servIces, 
Company shall be Artist's exclusive worldwide representative .... 
In the request for evidence dated January 28, 2009, the director instructed the petitioner to submit a complete 
itinerary of engagements which shows the specific dates of each engagement, the name of the actual 
employer, and the name and address of each facility where services will be perfonned, accompanied by 
copies of written contracts or summaries of oral contracts entered into by the petitioner and beneficiary. 
In a response dated January 9, 2009, counsel for the petitioner stated that the beneficiary will be working at 
the petitioner's primary address as a jazz singer teacher. Counsel further stated: 
[The beneficiary] will also participate in several music events during the next three years, as 
estipulate [sic] in the contract between the petitioner and [the beneficiary]. 
The petitioner will manage her professional career as a jazz singer and will be responsible for 
scheduling the music events. The dates of the events cannot be schedule[ d] before the 
confinnation of the approval of her petition. All events will be under the petitioner['s] 
responsibility as an agent and employer as stipulated in the management contract. 
The petitioner, through counsel, resubmitted a copy of the above-referenced management agreement, but did 
not further address this issue. 
Page 6 
In denying the petition, the director noted that the petitioner submitted conflicting information regarding the 
nature of the beneficiary's services. The director observed that the petitioner indicated on Form 1-129 that the 
beneficiary will work as a jazz singer, with the petitioner acting as her agent with the responsibility for 
scheduling performances and events, and later indicated that the beneficiary would be employed by the 
petitioner as a jazz singer teacher at the petitioner's premises. The director emphasized that the management 
agreement that was twice submitted by the petitioner clearly stipulates that the petitioner will be managing the 
beneficiary's professional career and makes no reference to the beneficiary's employment as a jazz singing 
instructor. The director concluded that the petitioner is not exempt from submitting an itinerary, as it has 
stated at the time of filing and in response to the request for evidence that the beneficiary will be performing 
at various musical engagements. 
On appeal, the petitioner, which appears to have filed the appeal without the assistance of counsel, asserts that 
it was unaware of the director's request for evidence, or the specific request for an itinerary of engagements 
with specific dates. The petitioner further asserts: 
Regarding the management agreement that was in our Petition, it was elaborated by the Law 
office hired, who had used a standard artistic management agreement. Actually, Ijust need to 
hire the work of the beneficiary two times a year, during 3 subsequent years, and for a period 
of 7 days, with few chances to extend the referred period. During these periods, we plan to 
have the beneficiary teaching and demonstrating through performances and other 
presentations, mainly in our premises ... what is her specific ability: the vocal technique and 
phrasing of Brazilian Jazz, which require live demonstration. After the works being 
performed, the beneficiary will be free to return to her native Country, Brazil, and will come 
back only 6 months later to perform such works again, as we have presented with other 
artists. There is no interest and it wouldn't make any sense having in the US for longer than 
the necessary to present her work. 
The petitioner submits a written summary of the terms of its oral agreement with the beneficiary, which 
provides: 
Subject: Presentation by artist/educator [the beneficiary] of 6 (six) one week vocal 
clinics/workshop/demonstration/performances during 3 (three) subsequent years (2010, 2011, 
and 2012). 
Type of event: Vocal lessons and performances for students and to the public in general. 
Music Style covered: Brazilian Jazz vocal. 
Dates: 
2010: Jan. 15th thru 20th and July 19th thru 24th 
2011: Jan. 17th thru 22nd and July 18th thru 23rd 
Page 7 
The summary of the terms of the oral agreement further states that the beneficiary will work two hours per 
day when in the United States, will work at the petitioner's location, and will receive a guaranteed payment of 
at least $1,200 per week. 
Upon review, the petitioner's newly submitted evidence will not be accepted for consideration. Rather than 
identifying an erroneous conclusion or statement of fact on the part of the director, the petitioner 
acknowledges that he and the beneficiary signed a "management agreement" prepared by counsel that did not 
accurately reflect the nature of their relationship, or the terms and conditions of the beneficiary's employment. 
As noted above, the management agreement submitted at the time of filing and in response to the request for 
evidence indicates that the petitioner acts as a manager and agent for the beneficiary with responsibility for 
arranging, marketing and promoting her musical performances. The petitioner now claims that it seeks to hire 
the beneficiary only as an instructor on a limited basis. The petitioner also signed a Form 1-129 that indicates 
the beneficiary will provide services on a full-time basis for three years and now claims that the beneficiary 
will work for two hours a day, for two weeks per year, over a three year period. The petitioner's admission 
that inaccurate information and documentation was submitted in support of the petition provides sufficient 
grounds to affirm the denial of the petition. 
While the AAO acknowledges that no itinerary would be required from the petitioner under the terms of the 
newly submitted oral agreement, the petitioner may not simply substitute the newly submitted evidence for 
the previously submitted management agreement and request that the petition be adjudicated on that basis. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter af Michelin Tire Carp., 17 I&N Dec. 248 (Reg. Comm. 1978). Further, a petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter af Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). If significant changes are 
made to the initial request for approval, the petitioner must file a new petition rather than seek approval of a 
petition that is not supported by the facts in the record. The director's decision was correct based on the 
evidence submitted prior to the adjudication of the petition. Accordingly, the appeal will be dismissed. 
The denial of this petition is without prejudice to the filing of a new petition by the petitioner accompanied by the 
appropriate supporting evidence and fee. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.