dismissed O-1B Case: Performing Arts

identifying data deleted to 
revent clearly unwarr~nted 
~vasion of persona1 pflvac~ 
PUBLIC copy 
FILE: Office: VERMONT SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Irrnnigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
Date: DEC 1 6 2010 
PETITION: Petition for a Nonimmigrant Worker under Section 101 (a )(15)( 0)( i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1101(a)(15)(O)(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 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. 
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 appeal will be dismissed. 
The petitioner, an entertainment agency, filed this nonimmigrant petition seeking to classify the beneficiary as an 
0-1 nonimmigrant pursuant to section 101(a)(15)(O)(i) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1101(a)(15)(0)(i), 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 she may work as an actress, singer and 
narrator in the United States. 
The director denied the petition, concluding that the petitioner failed to provide copies of contracts made between 
the beneficiary and her actual employers, as required by 8 C.P.R. § 214.2(0)(2)(iv)(E)(2). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, the petitioner asserts that the director, in a request for evidence 
dated December 15, 2009, specifically requested copies of written contracts or summaries of oral agreements 
between the beneficiary and her employers. The petitioner contends that it submitted summaries of the 
beneficiaries' oral agreements with her actual employers, and thus complied with the director's request. The 
petitioner submits a statement on the Ponn I-290B, Notice of Appeal or Motion. 
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, 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. 
Section 101(a)(46) of the Act states that the tenn "extraordinary ability" means, for purposes of section 
101(a)(lS)(0)(i), in the case of the arts, distinction. 
The regulation at 8 C.P.R. § 214.2(0)(3)(ii) defmes, in pertinent part: 
Extraordinary ability in the field of arts means distinction. Distinction means a high level of 
achievement in the field of arts evidence 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'P.R. § 214.2(0)(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: 
Page 3 
(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 
(B) At least three of the following forms of documentation: 
(1) Evidence that the alien has performed, and will perform, services 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; 
(2) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or 
about the individual in major newspapers, trade journals, magazines, or other 
publications; 
(3) 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; 
(4) 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; 
(5) Evidence that the alien has received significant recognition for achievements 
from organizations, critics, government agencies, or other recognized experts in 
the field in which the alien is engaged. Such testimonials must be in a form 
which clearly indicates the author's authority, expertise, and knowledge of the 
alien's achievements; or 
(6) 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)(iii) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
Page 4 
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." 8 C.F.R. § 214.2(0)(2)(i). 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 end 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. 
Finally, the regulation at 8 C.F .R. § 214.2(0 )(2)(iv )(E) imposes the following requirements on petitions filed by 
United States agents: 
Agents as petitioners. 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. A petition filed by an agent is 
subject to the following conditions: 
(1) An agent performing the function of an employer must provide the contractual agreement 
between the agent and the beneficiary which specifies the wage offered and the other terms 
and conditions of employment of the beneficiary. 
(2) A person or company in business as an agent may file the petition involving multiple 
employers as the representative of both the employers and the beneficiary if the supporting 
documentation includes a complete itinerary of the event or events. The itinerary must 
specify the dates of each service or engagement, the names and addresses of the actual 
employers, and the names and addresses of the establishments, venues or locations where 
the services will be performed. A contract between the employers and the beneficiary is 
required. The burden is on the agent to explain the terms and conditions of the employment 
and to provide any required documentation. 
(3) A foreign employer who, through a United States agent, files a petItIOn for an 0 
nonimmigrant alien is responsible for complying with all of the employer sanctions 
provisions of section 274A of the act and 8 CFR part 274a. 
Page 5 
II. Discussion 
The sole issue addressed by the director is whether the petitioner, which filed the petition as a company in 
business as an agent pursuant to 8 C.F.R. § 214.2(0)(2)(iv)(E)(2), complied with the requirement that it 
submit copies of contracts between the beneficiary and her actual employers. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on June 15,2009. The petitioner 
stated that it is in the business of representing and managing the careers of actors, singers, dancers and other 
performers and "has agreed to represent [the beneficiary] in the field of acting, singing and narrating in the 
State of Florida and the rest of the United States for the next three years starting July 2009 per our executed 
agent/manger [sic] contract." 
Although the petitioner states that it has an agent/manager contract with the beneficiary, it also stated that it 
has secured a contract on the beneficiary's behalf, under which 
the beneficiary is "slated to rehearse and perform for •••••••••••••••• upcoming 
shows." The petitioner noted that "the line-up of shows is on par with New York and Los Angeles shows." 
The petitioner indicated that it will manage the beneficiary's engagements and return her to her native country 
after she completes her engagement with . the United States. 
The petitioner indicated that it was submitting as "Exhibit 14" the contract between •••••••••• 
the beneficiary. The document submitted is on the petitioner's letterhead and is 
. The document states, in part: 
Per our conversation, I have outlined the terms of our employment with [the beneficiary] and 
she has signed indicating her agreement to these terms. 
1. [The beneficiary] engages the Agent as her agent and the Agent accepts such 
engagement. This agency contract shall include representation in connection with her 
employment and representation of [the beneficiary] shall not be deemed included in any 
separate agency contract which the Actress may have entered into. 
2. The term of this contract shall be for a period of three (3) years commencing July 27, 
2009 to July 27, 2012. 
3. [The beneficiary] agrees to pay to the Agent as commissions a sum equal to ten percent 
of all moneys or other consideration received by her, directly or indirectly, under 
contracts of employment (or in connection with her employment under said employment 
contracts) entered into during the term specified in Paragraph (2) or in existence when 
this agency contract is entered into. 
The contract continues on for several pages and was executed by the petitioner and the beneficiary on March 
20,2009. The document is not signed by a representative As such, the 
contract appears to represent an agreement between the instant petitioner and the beneficiary. The regulations 
at 8 C.F.R. § 214.2(0)(2)(i)(B) require the petitioner to submit a copy of any written contracts between the 
Page 6 
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. 
The petitioner provided the beneficiary's itinerary, or "Performances and Meetings Schedule," for the period 
of July 2009 through July 2012. The first two years of the itinerary are set forth as follows: 
July/August 2009 
Fly to Los Angeles 
Los Angeles Television Episodic Season Begins 
Meeting with Commercial Agency 
Meeting with Theatrical Agency 
Photo Shoot 
September /October 2009 
Discussions with casting director about upcoming Commercial 
Los Angeles International Short Film Festival, Hollywood 
Meeting with Casting Director about upcoming movie 
November / December 2009 
Attend classes at The Play House West, North Hollywood 
January / February 2010 
Los Angeles Pilot Season 
Sundance Film Festival, Salt Lake City, UT 
March / April 2010 
Casting for movie 
Los Angeles Pilot Season Ends 
May / June 2010 
Meeting with casting director, director and producer 
The Taming of the Shrew, Re-imagined (working title) 
Hollywood Black Film Festival, Beverly Hills, CA 
July / August 2010 
Los Angeles Television Episodic Season Begins 
Meeting with private dialect coach 
Rehearsal and fitting for movie 
September / October 2010 
Rehearsal and fitting for movie 
Fly back to London, England to attend the London Film Festival 
about upcoming movie 
Page 7 
Teach classes at Ridgeway Studios Performing Art School, London. 
November / December 2010 
Q&A at Stagecoach London, England. 
Meeting with an English Director about upcoming movie 
Fly to New York, photo shoot 
Fly back to Los Angeles, CA 
January / February 2011 
Los Angeles Pilot Season 
Sundance Film Festival, Salt Lake City, UT 
Filming in Birmingham, AL 
March / April 2011 
Los Angles Pilot Season Ends 
Reshoot scenes, finish filming 
May / June 2011 
Hollywood Black Film Festival, Beverly Hills, CA 
Meetings and Castings 
July/August 2011 
Los Angeles Television Episodic Season Begins 
Meetings and Castings 
September / October 2011 
Fly to New York 
Theatrical casting and meetings 
Workshop at TVI Studios, NYC 
November / December 2011 
Workshop at TVI Studios, NYC 
Fly back to Los Angeles for castings, meetings 
Classes at The Play House West, North Hollywood, CA 
The beneficiary's itinerary for 2012 includes the beginning and end of the Los Angeles pilot season, two film 
festivals, meetings with a commercial agency, meetings with a theatrical agency, and "meetings in London. II 
On August 4, 2009, the director issued a request for evidence ("RFE"), in which he requested additional 
evidence pertaining to the eligibility requirements for aliens of extraordinary ability in the arts pursuant to 8 
C.F.R. §§ 214.2(0)(3)(iv)(A) and (B). The petitioner submitted a timely response on November 2, 2009, 
Page 8 
which included a copy of the above-referenced itinerary. On December 15, 2009, the director issued a second 
RFE in which he advised the petitioner as follows: 
u.s. Citizenship and Immigration Services regulations allow agents to file on behalf of 
multiple employers. When an agent represents both the beneficiary and the beneficiary's 
employer(s), the agent is required to provide all supporting documentation, including 
itineraries and all employers' contracts, and terms of conditions of the various employment. 
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 the facility where 
the services will be performed. 
Submit copies of written contracts or summaries of oral agreements between the employers 
and beneficiary. 
In a response dated January 28, 2009, the petitioner stated that "in accordance with your request, [the 
beneficiary] has provided us with an updated and more complete itinerary." 
The amended itinerary indicated that the beneficiary would be working on the film tentatively titled The 
Taming of the Shrew, Re-imagined, from February 2010 until August 2011, including two months for 
"calendar call," two months for fitting and rehearsals, four months of pre-production, six months of 
production, and four months of post-production. According to the itinerary, the beneficiary would begin work 
on a television pilot for BBC One in England called "The Good Citizen" beginning with calendar call and 
rehearsals in September and October 2011. According to the itinerary, production in the United States would 
occur in July and August of2012, and the project would be completed by October 2012. 
With respect to the beneficiaries' contracts for these projects, the itinerary included a one-paragraph 
"Summary of Agreement" for each project. The first summary, for The Taming of the Shrew, Re-Imagined 
project, indicates that the beneficiary's employer will be states: 
The first moneys received by the company for the film will be applied to payment of all 
outstanding accounts payable for the production and distribution of the film until paid in full, 
next to the repayment to the investors of the entire amounts of their contributions actually 
expended for the production and distribution of the film, and thereafter, all moneys received 
by the company for the film will be paid by the company in percentages to the producer, 
director, actors, etc. As one of the leading actresses, [the beneficiary] (as "Bianca") will be 
paid 6.5%. 
The itinerary indicates that the beneficiary'S employer for 
following "Summary of Agreement": 
provides the 
Page 9 
Under the terms the actress shall play the role of of 
The Good Citizen. For services rendered as specified in the Agreement, Actor will be paid a 
fee of£12,000 ($19,471), payable immediately following the scheduled Close of production. 
The director denied the petition on March 15, 2010. Citing to the regulatory requirements applicable to 
agents at 8 C.F.R. § 214.2(0)(2)(iv)(E)(2), the director concluded that "the record does not contain copies of 
any contracts between the beneficiary and the actual employers." 
On appeal, the petitioner asserts that the director erroneously states that the petitioner failed to submit 
contracts between the beneficiary and the actual employers. Counsel asserts that "summaries of oral 
agreements were submitted as requested by a request for evidence" and notes that the request for evidence 
advised the petitioner that it could submit either copies of written contracts or summaries of oral agreements. 
Upon review, the petitioner has not met the requirements set forth at 8 C.F.R. § 214.2(0)(2)(iv)(E)(2), which 
provides: 
A person or company In business as an agent may file the petItIOn involving multiple 
employers as the representative of both the employers and the beneficiary if the supporting 
documentation includes a complete itinerary of the event or events. The itinerary must 
specify the dates of each service or engagement, the names and addresses of the actual 
employers, and the names and addresses of the establishments, venues or locations where the 
services will be performed. A contract between the employers and the beneficiary is required. 
The burden is on the agent to explain the terms and conditions of the employment and to 
provide any required documentation. 
Upon review of the totality of the evidence submitted, the AAO finds the record inconsistent and incomplete 
with respect to the identity of the beneficiary's actual employers and the nature of her proposed activities in 
the United States. Accordingly, the AAO will affirm the director's determination. 
At the time of filing the petition in June 2009, the petitioner stated that the beneficiary "is slated to rehearse 
and perform for upcoming shows," and stated that "the engagement 
to be performed is in a leading or critical role for an organization that has a distinguished reputation." The 
petitioner stated that it was attaching a copy of the beneficiary's contract with 
_ and mentioned no other engagement. 
However, the beneficiary's "contract" with this entity appears to describe the terms of the beneficiary's 
agreement with the petitioning agency and does not appear to be an employment contract, or an agency 
contract, with 
letterhead and addressed to 
not indicate that _ or 
with either party. 
As noted above, the document is on the petitioner's 
It is signed by the petitioner and the beneficiary, but it does 
has entered into any contract or agreement 
Page 10 
Furthermore, the petitioner offered no further evidence with respect to the "upcoming shows" referenced in 
the petitioner's initial letter. The actual itinerary submitted at the time of filing in June 2009 and in response 
to the first RFE in November 2009 did not clearly demonstrate that the beneficiary had in fact made any firm 
commitments for employment as an actress, singer or narrator. Rather the itinerary indicated that the 
beneficiary would meet with commercial and theatrical agencies, attend acting classes and workshops, meet 
with a dialect coach, participate in occasional photo shoots, attend film festivals, and participate in casting 
calls for film, theatrical and television roles. The itinerary did not make any specific reference to the claimed 
rehearsals and performances for "upcoming shows," nor did it mention 
with any specificity any actual rehearsals or performances in which the beneficiary would participate during 
the requested three-year period, either for this employer or for other employers. 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 Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm'r. 1972)). 
The first itinerary did mention a "meeting with casting director and producer _ about upcoming 
movie The Taming of the Shrew Re-imagined," scheduled for Mayor June of 2010, 10 to 11 months after the 
requested date of approval. However, there was nothing in the itinerary to suggest that the beneficiary had 
been cast in this film. The petitioner's initial evidence included a letter from _who states that he 
has seen a number of the beneficiary'S British movies and is impressed with her work. He did not mention 
that he has cast the beneficiary, or that he was in negotiations to cast the beneficiary, in his film. There is also 
a reference in the initial itinerary to a "meeting with an English Director about upcoming movie" scheduled 
for November or December 2010. The itinerary indicates that the beneficiary would be "filming in 
Birmingham, Alabama" in January and February of2011 and would "reshoot scenes, finish filming" in March 
or April of 2011. The itinerary does not indicate what she would be filming, identify the "English Director" 
with whom she would meet, or confirm whether she had actually been cast in an "upcoming movie," that 
would be filming in Birmingham, Alabama. 
The petitioner fell significantly short of meeting its burden to establish the terms and conditions of 
employment, as the itinerary did not specify the dates of each service or engagement, the names and addresses 
of the actual employers, and the names and addresses of the establishments, venues or locations where the 
services would be performed. Further, the petitioner did not submit copies of any contracts between the 
beneficiary and any actual employers, or submit evidence to corroborate its statement that the "engagement" 
for which the beneficiary'S services are being sought is rehearsals and performances for "upcoming shows" of 
Martin & Donalds Talent Agency. 
The AAO acknowledges that the director's request for evidence specifically stated that the petitioner should 
submit "copies of written contracts or summaries of oral agreements between the employers and beneficiary." 
However, the director also advised the petitioner that it is "required to provide all supporting documentation 
including itineraries and all employers' contracts, and terms and conditions of the various employment," in 
accordance with 8 C.F.R. § 214.2(0)(2)(iv)(E)(2). 
Page 11 
The AAO notes that an oral contract, as evidenced by the summation of the elements of the oral agreement, is 
enforceable and USCIS will accept the summation as evidence of an oral agreement. However, a summary of 
a written contract cannot be submitted in lieu of the actual written contract. See generally 8 C.F .R. § 
214.2(0)(2)(ii)(B)(providing that a summary of the terms of the oral agreement under which the alien will be 
employed must be provided when there is no written contract between the parties.) Here the petitioner 
included in the beneficiary's revised itinerary a "summary of agreement" which the petitioner indicates it 
obtained from the beneficiary herself. The petitioner did not affirmatively state that the beneficiary has no 
written contract with her proposed employers, nor did it state that the beneficiary has a binding oral 
agreement with the employers. Evidence of the existence of an oral agreement may include but is not limited 
to: correspondence between the contractual parties, a written summation of the terms and conditions signed 
by the parties, or any other evidence which demonstrates that an oral agreement was created. If the petitioner 
is acting as the beneficiary'S agent and arranged the proposed film and television roles, then such evidence 
should be readily available. 
Furthermore, the "summaries of agreement," based on the language in which they are written, appear to have 
been excerpted from a written agreement. For example, the summary of agreement for the BBC One project 
states: "For services rendered as specified in the Agreement, Actor will be paid a fee of £12,000 ($19,471), 
payable immediately following the scheduled Close of production." There is clearly an agreement specifying 
the terms of employment that is not fully summarized by the information provided. 
Given the significant discrepancies between the two itineraries submitted and the petitioner's initial statements 
regarding the nature of the beneficiary'S engagement in the United States, the AAO finds that the "summary 
of agreement" included in the beneficiary'S revised itinerary is insufficient to document the existence of the 
claimed oral agreement. The summary identifies the amount the beneficiary will be paid and the names of the 
characters she would play, but describes no other terms or conditions of employment. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm'r. 1972». Furthermore, it is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Based on the foregoing, the AAO concurs with the director's determination that the petitioner did not satisfy 
its evidentiary burden to submit contracts between the beneficiary and her actual employers, as required by 8 
C.F.R. § 214.2(0)(2)(iv)(E)(2). We further find that the petitioner has failed to satisfy the other components of 
this regulatory requirement, including submission of a complete itinerary of the proposed event or events, the 
names and addresses of the actual employers, and the names and addresses of the establishments, venues or 
locations where the services will be performed. Again, the burden is on the agent to explain the terms and 
conditions ofthe employment and to provide any required documentation. Id 
As discussed above, at the time of filing, the petitioner stated that the engagement for which the beneficiary'S 
services were sought was to rehearse and perform in "upcoming shows" of 
Page 12 
Agency. No such shows were identified on the initial itinerary, which listed no firm employment 
commitments. The petitioner indicated on the Form 1-129 that the beneficiary would receive "industry scale" 
compensation, which further supports a finding that the claimed employment contracts were not in place at 
the time of filing. While the petitioner submitted the terms of its agency agreement with the beneficiary, 
there is no evidence that the beneficiary had executed any employment contract as of the date the petition was 
filed. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r. 1978). USCIS will not grant 0 
classification to an alien merely to enter the United States to freelance and seek employment. An 0 
nonimmigrant is admitted to the United States to perform in specific events as detailed on the initial petition. 
59 FR 41818-01,41822 and 41828 (August 15, 1994). 
Furthermore, the itinerary provided in response to the RFE is not corroborated by any documentary evidence. 
The "summary of agreements" included in the itinerary does not fully describe the beneficiary's terms of 
employment, or establish that the beneficiary had agreed to such terms prior to the filing of the petition. 
Therefore, the AAO concludes that the petitioner in this matter did not satisfY the documentary requirements set 
forth at 8 C.F.R. § 214.2(0)(2)(ii)(C) and 8 C.F.R. § 214.2(0)(2)(iv)(E)(2). The petitioner has not submitted 
evidence on appeal to overcome the director's determination. Accordingly, the appeal will be dismissed. 
ill. Extraordinary Ability in the Arts 
Beyond the decision of the director, the petitioner has not established that the beneficiary meets the criteria 
for an alien of extraordinary ability in the arts as set forth at 8 C.F.R. § 214.2(0)(3)(iv). As noted above, 
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 above that ordinarily encountered to the 
extent that a person described as prominent is renowned, leading or well-known in the field of arts. 8 C.F.R § 
214.2(0 )(3)(ii). 
In determining the beneficiary's eligibility under the evidentiary criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B), the 
AAO will follow a two-part approach 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, 20 I 0). 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. Cj 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: 
Page 13 
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 of the [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)(l)(A)(i). 
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 final merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
regulatory definition of "extraordinary ability" as "one of that small percentage who have risen to the very top of 
the field of endeavor." 
The AAO finds the Kazarian court's two-part approach to be appropriate for evaluating the regulatory criteria set 
forth for 0-1 nonimmigrant petitions for aliens of extraordinary ability at 8 C.F.R. § 214.2(0)(3)(iii), (iv) and (v). 
Therefore, in reviewing Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO 
maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by 
using a one-step analysis rather than the two-step analysis dictated by the Kazarian court. See Sollane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has been 
nominated for or received a significant national or international award or prize in his or her field pursuant to ·8 
C.F.R. § 214.2(0)(3)(iv)(A), then it will meet its burden of proof with respect to the beneficiary'S eligibility for 0-
1 classification. The beneficiary received ••••••••• 
The award certificate is signed by the academy's "Head of Examinations." While this 
achievement is noted, the petitioner did not provide any additional information regarding the award to establish 
that such award is comparable to an Academy or Emmy award for acting, which are the examples provided in the 
regulations as "significant national or international" awards. The AAO further notes that this acting award is not 
mentioned on the beneficiary's resume, thus raising questions regarding its significance. 
As the evidence of record does not demonstrate that the beneficiary has been nominated for or received a 
significant national or international award or prize, the petitioner must establish the beneficiary'S eligibility under 
at least three of the six criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B). 
In order to meet the first criterion, the petitioner must submit evidence that the beneficiary has performed, and 
will perform, services 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. 8 C.F.R. § 214.2(0)(3)(iv)(B)(1). 
Page 14 
According to the beneficiary's resume, she has appeared in the films Fall Out, Happy Hour, Okay to Drive, and 
Regrets. The petitioner has not provided evidence that she held lead or starring roles in these films or that the 
films have a distinguished reputation. The beneficiary's resume also indicates that she has appeared in a total of 
seven plays in London. While it appears that the beneficiary had lead or starring roles in some of these 
productions, the only supporting evidence submitted with respect to the beneficiary's theatre roles are a single 
playbill and testimonial letters from Los Angeles-based actors and producers who claim to have seen the 
performances. The petitioner cannot meet the plain language of this regulatory criterion unless it submits critical 
reviews, advertisements, publicity releases, publications, contracts or endorsements. Finally, the evidence of 
record demonstrates that the beneficiary appeared in "The 
Afternoon Play" which originally aired in 2005. While this network television production may have a 
distinguished reputation, the petitioner has not submitted evidence to establish that the beneficiary'S role was 
"leading or starring." Furthermore, the petitioner did not submit critical reviews, advertisements, publicity 
releases, publications, contracts or endorsements pertaining to this performance. 
Finally, the regulations require that the beneficiary "has performed, and will perform, services as a lead or starring 
participant" in productions or events that have a distinguished reputation. As discussed, the petitioner has not 
established that the beneficiary had secured any employment in as a lead or starring participant in any upcoming 
productions at the time the petition was filed, and the record contains no published materials regarding either of 
the projects listed in the revised itinerary that would establish the distinguished nature of these productions. 
Accordingly, the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(J). 
In order to establish that the beneficiary meets the second criterion, the petitioner must submit evidence that the 
alien has achieved national or international recognition for achievements evidenced by critical reviews or other 
published materials by or about the individual in major newspapers, trade journals, magazines, or other 
publications. 8 C.F.R. § 214.2(0)(3)(iv)(B)(2). The petitioner failed to submit any critical reviews or published 
materials about the beneficiary from any source. 
In order to establish that the beneficiary meets the third criterion, the petitioner must submit 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. 
8 C.F.R. § 214.2(0)(3)(iv)(B)(3). The petitioner has submitted a number of testimonial letters, but no published 
materials regarding the beneficiary's prior or upcoming roles. The regulation at 8 C.F.R. § 214.2(0 )(2)(iii)(B) 
provides that affidavits from present or former employers or recognized experts certifying to the recognition and 
extraordinary ability of the alien shall specifically describe the alien's recognition and ability or achievement in 
factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such 
information. The petitioner has submitted four letters from individuals who identified themselves simply as 
"actors in Los Angeles, California." The actors mention the beneficiary'S roles and praise her work, but they do 
not set forth their expertise, the means by which they acquired information regarding the beneficiary'S 
performances in the United Kingdom, and do not mention the specific organizations and establishments that have 
employed the beneficiary or address the reputation of those organizations or establishments. 
Page 15 
The petitioner also submitted a letter from American who states that he was impressed 
by the beneficiary's performance i~ that he taught. While his letter is highly complimentary to the 
beneficiary's talents as an actress, __ does not address the beneficiary's prior or upcoming roles or 
discuss the reputation of the organizations or establishments that have employed and will employ the beneficiary. 
Finally, the petitioner provided a brief letter from American producer _, who states that he has seen a 
number of the beneficiary's British movies, and notes that she has performed lead roles in a number of plays. 
Again, he does not discuss any upcoming lead or starring roles that the beneficiary has secured or provide any 
information that would establish the distinguished reputation of the organizations and establishments that have 
employed the beneficiary in the past. Overall, the testimonial evidence submitted is insufficient to establish that 
the beneficiary meets this criterion. 
To establish that the beneficiary meets the fourth criterion, the petitioner must establish that the beneficiary 
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. 8 C.F.R. 
§ 214.2(0)(3)(iv)(B)(4). The petitioner did not submit any published evidence that would establish a record of 
major commercial or critical acclaimed successes in the performing arts. 
In order to meet the fifth regulatory criterion, the petitioner may submit evidence that the beneficiary has 
received significant recognition for achievements from organizations, critics, government agencies, or other 
recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which 
clearly indicates the author's authority, expertise, and knowledge of the alien's achievements. 8 C.F.R. 
§ 214.2(0)(3)(iv)(B)(5). As discussed, the petitioner has submitted a number of testimonial letters, the 
majority of which are from American actors who fail to set forth their authority, expertise or the basis for their 
knowledge regarding the beneficiary. While the AAO recognizes that the individuals who provided letters 
hold a very high opinion of the beneficiary'S talent and potential, the submitted testimonials do not satisfy the 
evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(5). None of the persons providing testimonials have 
clearly indicated their knowledge of the beneficiary's achievements in the field of acting. Rather, the majority 
of them opine that the beneficiary is a talented' actress, without specifically addressing her achievements or 
significant recognition in the field. 
The sixth and final criterion requires the petitioner to submit evidence that the beneficiary 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. 8 C.F.R. § 214.2(0)(3)(iv)(B)(6). The petitioner 
indicated on Form 1-129 that the beneficiary will receive "industry scale" wages for her proposed work in the 
United States, which cannot be considered a high salary compared to other actors. The record contains no 
evidence pertaining to the remuneration the beneficiary has received for past roles and performances. The 
petitioner provided updated salary information for the beneficiary eight months after filing the petition. 
Again, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r. 1978). Regardless, the 
petitioner did not establish through the submission of reliable evidence that the beneficiary's proffered 
Page 16 
salaries as set forth in the beneficiary's revised itinerary meet the criteria of a "high salary" for a film or 
television actress. Such evidence could include statistical comparisons of the salaries in the field of endeavor. 
Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under three 
criteria, considered in the context of a final merits determination. However, as discussed above, the petitioner 
established eligibility under none ofthe six criteria, of which three are required under the regulation at 8 C.F.R. § 
214.2( 0 )(3)(v)(B). 
Notwithstanding the above, a final merits determination considers all of the evidence in the context of whether or 
not the petitioner has demonstrated: (1) that the beneficiary has a high level of achievement in the field of arts 
evidence by a degree of skill and recognition substantially above that ordinarily encountered to the extent that she 
is renowned, leading or well-known in the field of arts, pursuant to 8 C.F.R. § 214.2(0)(3)(ii); and (2) that the 
beneficiary is recognized as being prominent in her field of endeavor, pursuant to 8 C.F.R. § 214.2(0)(3)(iv). See 
Kazarian, 2010 WL 725317 at *3. 
Upon review, the AAO finds that the petitioner has not established that the beneficiary has achieved 
distinction as an actor to the extent that she is recognized in the field as prominent, renowned, leading or well­
known. 
The specific deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.F.R. § 214.2(0 )(3)(iv)(B). The petitioner submitted some 
documentation relating to the beneficiary's work experience. Although the evidence establishes that the 
beneficiary is a working actress in the United Kingdom, the minimal evidence submitted does not distinguish the 
beneficiary from any other actress and is insufficient to establish that she is recognized as leading or well-known 
in the field. 
Therefore, the conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the minimal evidence does not 
distinguish the beneficiary as an actress who is prominent in the theater, film or television industry. The 
documentation submitted in support of a claim of extraordinary ability in the arts must clearly demonstrate 
that the beneficiary has a high level of achievement in the field of arts evidenced by a degree of skill and 
recognition substantially above that ordinarily encountered. The petitioner has not met this burden. For this 
additional reason, the petition cannot be approved. 
IV. Conclusion 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. 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); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). 
, . 
Page 17 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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). 
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.