dismissed O-1B Case: Music

IdentifYIng data deleted to 
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invasion of ~n..~1 ' t"'& ~ua pnvacy 
PUBLJCCOPY 
U.S. Department 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. Citizenship 
and Immigration 
Services 
DATE: JAN 10 2012 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 101 (a)(15)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1101(a)(15)(O)(i) 
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 $630. 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. 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition, and the 
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is now before 
the AAO on a motion to reconsider. The AAO will dismiss the motion. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary pursuant to section 
101(a)(l5)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § llOI(a)(l5)(0) as an alien with 
extraordinary ability in the arts. The petitioner requests that the beneficiary be granted 0-1 classification for a 
period of three years so that he may perform in the United States as a trumpet player. 
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 petitioner failed to establish that the 
beneficiary meets the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), and submitted evidence to satisfy 
only one of the six evidentiary criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B), of which three must be met to 
establish eligibility. 
The AAO dismissed the appeal, concluding that the submitted evidence failed to satisfy any of the evidentiary 
criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B), of which three must be satisfied to establish the beneficiary's eligibility 
for the requested classification. The AAO further found that, although required by regulation and specifically 
requested by the director, the petitioner failed to submit a copy of its contract with the beneficiary, as required by 
8 C.F.R. § 214.2(0)(2)(ii)(B), prior to the adjudication of the petition. The AAO, citing Matter of Soriano, 29, 
I&N Dec. 764 (BIA 1988) and Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988), declined to consider the 
sufficiency of the evidence submitted for the first time on appeal. Finally, the AAO determined that the 
petitioner failed to satisfy evidentiary requirements applicable to petitioning agents pursuant to 8 C.F.R. § 
214.2(0 )(2)(iv)(E). 
The matter is now before the AAO on motion to reconsider. The regulation at 8 C.F.R. § 103.5(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion 
to reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
In addition, the regulation at 8 C.F.R. §103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a 
statement about whether or not the validity of the unfavorable decision has been or is the subject of any 
judicial proceeding." The petitioner's motion does not contain this statement. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements 
must be dismissed. Therefore, because the instant motion does not meet the applicable filing requirements 
listed in 8 C.F.R. § 103.5(a)(1 )(iii)(C), it must be dismissed for this reason. 
Page 3 
Even if the petitioner had complied with the requirements at 8 C.F.R. § I03.5(a)(I)(iii)(C), the petitioner has 
not established that the AAO's decision to dismiss the appeal was based on an incorrect application of law or 
USCIS policy. 
The instant motion consists of counsel's II-page brief, the majority of the content of which is derived directly 
and verbatim from counsel's appellate brief. The purpose of a motion to reopen or motion to reconsider is 
different from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the 
entire record on appeal, the AAO's review in this matter is limited to the narrow issue of whether the 
petitioner has documented sufficient reasons, supported by citations to appropriate statutes, regulations or 
precedent decisions, to warrant the reconsideration of the AAO's decision to dismiss the petitioner's appeal on 
March 10, 2011. The AAO previously conducted a de novo review of the entire record of proceeding, an 
appellate decision was issued, and the deficiencies were expressly stated in the AAO's 20-page decision. 
Furthermore, counsel does not address the additional grounds for denial set forth in the AAO's decision dated 
March 10, 2011, specifically, the petitioner's failure to satisfy the evidentiary requirement at 8 C.F.R. 
§ 214.2(0)(2)(ii)(D) and evidentiary requirements applicable to agents as petitioners at 8 C.F.R. 
§ 214.2(0)(2)(iv)(E). When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed 
on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd. 345 F.3d 683 (9th Cir. 2003). 
Counsel's sole specific objection to the AAO's decision pertains to its employment of a two-part approach to 
adjudication set forth in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. 
USCIS, 2010 WL 725317 (9th Cir. March 4, 2010). Similar to the regulations governing this nonimmigrant 
classification, the regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining 
to at least three out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with 
extraordinary ability. Cf 8 C.F.R. § 204.5(h)(3). 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence provided 
(which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the 
applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. 
at *6 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the corollary 
to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top ofthe[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only 
aliens whose achievements have garnered "sustained national or international acclaim" are 
eligible for an "extraordinary ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i). 
Page 4 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is fIrst counted and then, if qualifying under at 
least three criteria, considered in the context of a final merits determination. The ftnal merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
regulatory deftnition of "extraordinary ability." 
In this matter, the AAO determined that the evidence submitted failed to satisfy 8 C.P.R. § 214.2(0)(3)(iv)(A) or 
at least three of the six criteria set forth at 8 c.P.R. § 214.2(0)(3)(iv)(B). Specifically, the AAO determined that 
the evidence failed to satisfy the plain regulatory language of anyone of these criteria. The fIrst part of the 
Kazarian analysis, as set forth above, simply requires the application of the regulatory requirements to the 
evidence provided. The AAO's decision, at pages 5 to 16, discusses in considerable detail each piece of evidence 
submitted and why the evidence submitted fails to satisfy any of the applicable regulatory criteria. Counsel has 
neither addressed any of the defIciencies discussed therein nor claimed that the AAO's decision would have been 
favorable to the petitioner if Kazarian had not been applied. 
Counsel's objections to Kazarian are as follows: 
The court in Kazarian analyzed the regulations governing employment-based immigrant worker 
visa petitions filed under the first-preference category for individuals fIled an application for 
"aliens of extraordinary ability." Although they may be similar in nature, there is a separate set 
of regulations which govern the criteria that must be met by a nonimmigrant worker seeking 
designation as an alien of extraordinary ability in the arts. See 8 CPR 214.2(0)(3)(iv)(A) and 8 
CPR 214.2(0)(3)(iv)(B). 
* * * 
Although similar in nature, there are two distinct sets of regulations governing immigrant and 
nonimmigrant workers of extraordinary ability. Because the court in Kazarian does not directly 
address the eligibility criteria for designation as an 0-1 nonimmigrant of extraordinary ability, it 
is readily distinguishable from the case at bar and should not have been employed by the AAO in 
deciding the Petitioner's appeal. 
(Emphasis in original.) 
Counsel further asserts that "Kazarian essentially holds that a petitioner claiming extraordinary ability need not 
submit extraordinary evidence to prove that he or she is a person of extraordinary ability." As an example, 
counsel states that "[i]f one of the evidentiary criteria requires a showing of scholarly publications, the petitioner 
need not establish that the scholarly pUblications themselves are also extraordinary in order to qualify." Counsel 
notes that this a "circular argument, which Kazarian appropriately shot down." Counsel does not contend that 
· . 
such "faulty reasoning" was employed by the AAO in adjudicating the petitioner's appeal. A review of the 
AAO's decision reflects that it did not evaluate the importance or significance of the evidence, beyond the 
plain language of the regulations. 
The AAO fmds counsel's arguments with respect to Kazarian unpersuasive. Although immigrant and 
nonimmigrant petitions for aliens of extraordinary ability are governed by different statutes and regulations, 
Congress intended for the same extraordinary ability standard to apply to both the 0-1 nonimmigrant and first 
preference immigrant classifications. The legislative history for the enabling statute states: "Extraordinary 
ability (0 Visas) - The bill's definition of aliens of extraordinary ability requires sustained national or 
international acclaim. This definition is identical to that for the comparable category of priority workers for 
permanent immigration. Thus, the same extensive documentation in support of a claim for status will be 
required." H. Rep. No. 101-723 (Sept. 19, 1990). 
Based on this clear congressional intent, the AAO must consistently apply the extraordinary ability standards 
to appeals in both the nonimmigrant and immigrant extraordinary ability classifications. 
Purther, the AAO finds that the Kazarian evaluation complements the original intended approach for the 0-1 
classification. The drafters of the 1994 0-1 final rule made clear that the evidentiary criteria were not the 
"standard" for adjudicating a petition. The legacy Immigration and Naturalization Service (INS) drafters 
stated that: "[t]he evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met." 59 PR 41818 (August 15, 1994). The 
supplemental information further stated that "[t]he mere fact that the petitioner has submitted evidence 
relating to three of the criteria as required by the regulation does not necessarily establish that the alien is 
eligible for 0-1 classification." Id. at 41820. 
Therefore, the AAO fmds that the application of Kazarian to adjudication of 0-1 nonimmigrant petitions is 
proper. In this matter, under Kazarian, the AAO was not required to conduct the "final merits determination" 
step of the two-part analysis, as the evidence submitted failed to meet at least three of the six criteria applicable to 
aliens of extraordinary ability in the arts. If the AAO had foregone the analysis of the evidence in the aggregate 
in the brief section of its decision titled ''Final Merits Determination," the dismissal of the appeal was still 
mandated by the regulations governing the 0-1 nonimmigrant classification. The petition was not approvable as 
it did not contain evidence of the beneficiary's extraordinary ability required by 8 C.P.R. § 214.2(0)(3)(iv)(A) or 
(B); evidence ofa contract between the petitioner and the beneficjary as required by 8 c.P.R. § 214.2(0)(2)(ii)(D); 
or evidence required in support of petitions filed by agents pursuant to 8 c.P.R. § 214.2(0)(2)(iv)(E). 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.P.R. 
§ 103.5(a)(1)(iv). 
· ' . 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
The petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the proceedings will not 
be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.