sustained O-1B Case: Lighting Design

Identifying data deleted to 
prevent clearly unwarrameo 
invasion of personal privacy 
~LICCOP~ 
Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. DepartmeDt of Homeland Security 
u.s. Citizenship and lnunigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: OCT 2 9 2.010 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(15)(0) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(0). 
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. 
Thank you, 
cf@,'''~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.useis.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 withdraw the director's decision 
and sustain the appeal. 
The petitioner filed this petition seeking to classifY the beneficiary as an 0-1 nonimmigrant pursuant to section 
10 I (a)(l5)(0)(i) of the Immigration and Nationality Act (the Act), as an alien of extraordinary ability in the 
arts. The petitioner is engaged in the sale, service and rental of lighting systems for theatre, concerts, trade 
shows, television, film, industrial and special events. It currently employs the beneficiary pursuant to an 
approved 0-1 classification petition and now seeks to extend his status for three additional years. 
On August 3, 2009, the director denied the petition concluding that the petitioner failed to establish that the 
petitioner will engage the beneficiary's services for a specific event or events as required by the regulations. 
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 asserts that, although the director issued a lengthy request for 
evidence ("RFE"), the RFE failed to mention any perceived deficiency regarding the events for which the 
petitioner sought the beneficiary's services. Counsel requests that the AAO withdraw the director's decision and 
either approve the petition or remand the matter for issue of a new RFE. 
I. The Law 
Section 10 l(a)(l5)(0)(i) of the Act, 8 U.S.c. § 110 I (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 .. 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a level of 
expertise indicating that the person is one of the small percentage who have arisen to the very 
top of the field of endeavor. 
, The director identified the beneficiary'S area of extraordinary ability as both "business" and "science." 
However, the petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it sought to 
classifY the beneficiary as an alien of extraordinary ability in the arts. The beneficiary'S area of extraordinary 
ability is lighting design, which is among the occupations listed as examples in the regulatory definition of 
"arts" at 8 C.F.R. 214.2(0)(3)(ii). 
Pursuant to 8 C.F.R. § 214.2(0)(1)(i), a qualified alien may be authorized to come to the United States to 
perform services relating to an event or events if petitioned for by an employer. 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. 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines "event" as follows: 
Event means an activity such as, but not limited to, a scientific project, conference, 
convention, lecture series, tour, exhibit, business project, academic year, or engagement. 
Such activity may include short vacations, promotional appearances, and stopovers which are 
incidental and/or related to the event. A group of related activities may also be considered to 
be an event. In the case of an 0-1 athlete, the event could be the alien's contract. 
II. Discussion 
A. Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that it seeks to engage the 
beneficiary's services for a specific event or events as contemplated by the regulations. The director 
concluded that the petitioner failed to provide a beginning and end date for the beneficiary's employment or 
to identifY a defined project or engagement. The director concluded that the beneficiary would be "performing 
the usual duties of someone employed as a Sales Representative." 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on March 16,2009. The petitioner 
indicated that it seeks to employ the beneficiary as rental account representative for its multi-million dollar 
Microsoft corporate account on a full-time basis for a period of three years. The petitioner indicated that the 
position is commission-based and the account value is expected to exceed $2.5 million. 
The petitioner provided a detailed description for the rental account representative position, which describes 
the terms of employment and the petitioner's Revenue/Performance benchmarking tool, which is used to 
Page 4 
determine the annual commission to be paid, and reiterated in its supporting letter that it has offered the 
beneficiary the position for a period of three years. 
The director issued a request for additional evidence ("RFE") on May 4, 2009. The director instructed the 
petitioner to provide a copy of any written contracts between the petitioner and the 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 director did not request an itinerary, an explanation of the nature of the events or activities, or the 
beginning and ending dates for the events or activities. 
In response, the petitioner resubmitted the above-referenced overview of the proffered position in lieu of a 
fonnal employment contract. Counsel emphasized that the overview describes the central job duties, the 
company reporting structure, and the method in which the company measures job perfonnance. 
The director denied the petition on August 3, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be coming to the United States to perform services relating to a specific event or events for 
an employer. Specifically, the director stated: 
Although the petitioner provided an explanation of the duties to be perfonned by the 
beneficiary, there irs] no indication on record as far as definite beginning or ending daters] or 
no defined project or engagement. On the petitioner's initial statement, it indicates that the 
beneficiary will manage the company's account. However, the petitioner did not 
provide any supporting documentation to support its statement. 
Thus, the record does not establish that the beneficiary will be perfonning in a particular 
project. There is no beginning or ending dates to the beneficiary's employment. Instead, the 
evidence indicates that the beneficiary will be performing the usual duties of someone 
employed as a Sales Representative. 
In denying the petition, the director relied in part on the commentary accompanying the final 0 and P visa 
rule amending the regulations at 8 C.F.R. § 214.2 to reflect changes made by the Miscellaneous and Technical 
Immigration and Naturalization Amendments of 1991, Public Law 102-232 (December 12, 1991), in which 
legacy Immigration and Naturalization Service (INS) made the following observations: 
Admission Periods for 0 Nonimmigrants--§214.2( 0)( I 0) 
One commenter suggested that there should be no regulatory limit on the length of admission 
for an 0 nonimmigrant alien. The suggestion cannot be adopted since the period of stay for 
an 0 nonimmigrant is limited by the Act to the period of time required by the alien to 
complete the event or events described on the petition. An 0-1 classification may not be 
granted to an alien to enter the United States to freelance in the open market. An 0-1 alien 
must be coming to the United States for specific events. 
Page 5 
The three-year period of time listed in the final rule relates only to the alien's initial period of 
admission. The alien's total period of time in the United States will be limited to the duration 
of the event. There is no maximum time limit on the 0-1 's total stay in the United States. 
* * * 
Periods of Admission 
* * * 
Except for P-l athletes, there is no maximum period on the on the length of time that an 0 
and P nonimmigrant may remain in the United States. However, it is rare that a P-l 
entertainment group would need more than a year to complete an event or events. Most 
entertainment events are for shorter periods of time and 0 or P classification may not be 
granted to an alien merely to enter the United States to freelance and seek employment. The 
o and P nonimmigrant alien is admitted to the United States to perform in specific events as 
detailed on the initial petition. 
59 Fed. Reg. 41818-01, 41822 and 41828 (August 15, 1994). 
On appeal, counsel indicates that the director failed to address the grounds for denial in the RFE and thus did 
not give the petitioner notice that the terms of employment were somehow deficient. Counsel requests that the 
director's decision be withdrawn and the petitioner either remanded or approved. 
B. Analysis 
Upon review, the AAO finds that the director's interpretation of the definition of "event" is overly narrow and 
restrictive. Given the nature of the petitioner's business and the position offered, the AAO finds that the 
petitioner has met its evidentiary burden by explaining the beneficiary's terms of employment, confirming that 
there is no formal written contract, and providing a detailed explanation of the nature and scope of the 
beneficiary's proposed activities, as required by 8 C.F.R. § 214.2(0)(2)(ii)(B) and (C). 
The director concluded that the beneficiary "will be performing the usual duties of someone employed as a Sales 
Representative," but did not provide adequate support for her conclusion that this type of employment situation is 
prohibited by the statute and regulations. The AAO notes that aliens with extraordinary ability in athletics hired 
by professional sports teams, as well as aliens with extraordinary ability in education hired by U.S. universities, 
are often hired under multi-year contracts and also perform the "normal duties" of professional athletes or 
university professors, respectively. However, such employment circumstances are clearly considered to be within 
the definition of "event" at 8 C.F.R. § 214.2(0)(3)(ii), which includes an "academic year" and, for athletes, "the 
alien's contract," as qualifYing activities. 
Page 6 
The regulatory definition of "event" provides only a short list of examples of qualifYing activities and specifically 
states that it is not an exhaustive or definitive list, thus suggesting that officers would have the discretion to 
determine on a case-by-case basis what constitutes a qualifYing "event." The definition includes among the list of 
qualifYing activities the term "engagement" which is commonly defined as "employment, especially for a given 
period of time, " or "a period of employment." Webster's II New World College Dictionary 373 (3rd Ed. 200 I). 
This flexibility in the regulatory definition is also reflected in the evidentiary requirements at 8 C.F.R. 
§ 214.2(0 )(2)(ii)(C) which instruct the petitioner to provide "an explanation of the nature of the events or 
activities, and to provide a copy of any itinerary." The regulations recognize that not every petitioner will be 
able to provide an itinerary or evidence of a list of discrete performances, competitions, or tour dates, 
depending on the field of employment. The definition of event must be interpreted broadly, as the 0-1 visa 
classification is expected to encompass a diverse array of occupations spanning the professions, athletics, and 
the arts and entertainment fields. 
In discussing events and periods of admission for 0-1 aliens, the commentary accompanying the final rule 
reveals a concern that 0-1 aliens not be permitted to freelance in the open market and that they not be 
permitted to enter the United States for the purpose of independently seeking employment. The commentary 
does not express any particular concern that 0-1 aliens must be prohibited from performing the "usual duties" 
of a given occupation. Here, the beneficiary is a lighting designer of distinction sought after by a leading 
company in the industry to manage the lighting systems needs of one of its largest corporate clients. There is 
no reason to believe that he would engage in any activities other than those described in detail in the petition 
and the accompanying job description. 
While it is necessary to require an itinerary of discrete performances or appearances for touring musicians or 
other artists and entertainers who are traditionally self-employed, and therefore more likely to freelance their 
services once in the United States, it is not reasonable to request an itinerary for an individual offered a full­
time position within their area of expertise. Given that the regulations allow for an initial three-year period of 
stay, consistent with other employment-based nonimmigrant classifications such as the H-IB and L-I 
categories, it is reasonable to believe that the "engagement" included in the regulatory definition of "event" 
may include a three-year offer of employment in the alien's area of extraordinary ability, including the 
"normal" duties of one's profession. Of course, the petitioner must still provide a detailed description of the 
nature of the activities and provide a copy of its written contract or a summary of the terms of its oral 
agreement with the alien. The petitioner has fulfilled these requirements. 
The director cited no other grounds for denying the petition, and upon de novo review, the AAO sees no 
additional basis for denial. Accordingly, the AAO will withdraw the director's decision dated August 3,2009 
and approve the petition. As always in these proceedings, the burden of proof rests solely with the petitioner. 
Section 291 of the Act, 8 U.s.c. § 1361. Upon review, the petitioner has met its burden of proof. 
ORDER: The appeal is sustained.