U.S. Citizenship and Immigration Services

MATTER OF B-S-, LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 24, 2017

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, engaged in thoroughbred horse sales and training, seeks to classify the Beneficiary as a foreign national of extraordinary ability in the arts to work as an assistant trainer/rider. See Immigration and Nationality Act (the Act) section 101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i). This 0-1 classification makes nonimmigrant visas available to foreign nationals who can demonstrate their extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.

The Director of the Vermont Service Center denied the petition, concluding that the record did not establish, as required, that the training and riding of racehorses falls within the arts and that the evidence did not satisfy at least three of the regulatory requirements.

On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary meets at least three of the regulatory criteria in the arts.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 101(a)(15)(0)(i) of the Act provides classification to a qualified beneficiary 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. The regulation at 8 C.F.R. § 214.2( o )(3)(ii) states, in pertinent part:

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.

Matter of B-S-, LLC

Arts are defined as "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.

The regulation at 8 C.P.R. § 214.2(o)(3)(iv) sets forth a multi-part analysis for assessing a beneficiary's extraordinary ability. First, a petitioner can demonstrate the beneficiary's recognition in the field through documentation that the beneficiary has been nominated for, or is 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. 8 C.P.R. § 214.2(o)(3)(iv)(A). If a petitioner does not provide this information, then that petitioner must satisfy at least three of the six categories of evidence listed at 8 C.P.R. § 214.2(o)(3)(iv)(B)(l)-(6). If a petitioner shows that certain criteria in paragraph (o)(3)(iv)(B) of this section do not readily apply to the beneficiary's occupation, that petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. 8 C.P.R. § 214.2(o)(3)(iv)(C).

The submission of documents relating to at least three criteria does not, in and of itself, establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). We have held that, "truth is to be determined not by the quantity of evidence alone but by its quality." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Pursuant to the preponderance of the evidence standard, we "must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." !d. Accordingly, where a petitioner presents qualifying evidence under at least three criteria, we will determine whether the totality of the record shows sustained national or international acclaim and demonstrates that the individual is among the small percentage at the very top of the field of endeavor.

In addition, the regulation at 8 C.P.R.§ 214.2(o)(2)(ii) requires a written advisory opinion(s) from the appropriate consulting entity or entities. The general requirements for the advisory opinion are as follows:

Content. Consultation with a peer group in the area of the alien's ability (which may include a labor organization), or a person or persons with expertise in the area of the alien's ability, is required in an 0-1 petition for an alien of extraordinary ability. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, it should describe the alien's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability. A consulting organization may also submit a letter of no objection in lieu of the above if it has no objection to the approval of the petition.

8 C.P.R. § 214.2(o)(2)(ii)(B) allows for a waiver of the consultation in the arts if the beneficiary seeks readmission to the United States to perform similar services within two years of a previous

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consultation. If petitioners wish to rely on a prior consultation, they must submit a copy with the petition and so advise the Director.

II. ANALYSIS

A. Prior 0-1 Nonimmigrant Visa

The record indicates that U.S. Citizenship and Immigration Services (USCIS) has previously approved a petition for 0-1 status that a different employer filed on behalf of the Beneficiary. The prior approvals do not preclude users from denying an extension of the original visa based on a reassessment of the qualifications of a petitioner or beneficiary. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Each nonimmigrant petition filing is a separate proceeding with a separate record and a separate burden of proof. In making a determination of statutory eligibility, users is limited to the information contained in that individual record ofproceedings. See 8 C.F.R. § 103.2(b)(16)(ii).

In the present matter, the Director reviewed the record and concluded that the Petitioner did not satisfy all eligibility requirements for the requested classification. As discussed further below, based on the lack of required evidence, we find that the Director correctly denied the instant petition.

B. Classification in the Arts

The Petitioner seeks to classify the Beneficiary as an individual of extraordinary ability in the arts. Although the Director correctly found that "arts" is not the appropriate category for the proposed work or the Beneficiary's talents, the Petitioner does not address this finding on appeal. While the regulation at 8 C.F.R. § 214.2(o)(3)(ii) lists animal trainers as falling within the arts, this example is specifically in the context of discussing essential personnel working in support of an 0-lB principal. Such positions in the arts might include trainers for animal acts for stage, film, and television productions, as well as for circuses, depending on the facts presented. Training for animals engaged exclusively in athletic endeavors, however, such as competitive horse racing, would not be among this group.

The nature of the intended events or activities in the United States is critical in determining whether the Beneficiary is entering the United States to provide services in the arts. In this case, the Petitioner specified on the 0 and P Supplement to the Form I-129, Petition for a Nonimmigrant Worker, that the nature of the event for which the Beneficiary would work comprises of thoroughbred horse racing competitions. In addition, the duties that appear in the contract include:

• Assisting in training, conditioning, and developing thoroughbred horse racing events; • Training according to the peculiarities of each horse; • Instructing jockeys on how to handle particular horses, feeding, exercising, grooming, and

talking to horses; • Riding horses to exercise and condition them; supervising the horses' health;

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• Substitute training when necessary; and • Preparing horses for sale.

The Petitioner's characterization of the Beneficiary's specific duties show that he will not create, perform, or serve as essential personnel to a "creative activity." Rather, he will be preparing horses used solely for the competitive racing industry. Where, as here, a petitioner seeks to employ a beneficiary as a horse trainer for athletic competitions, extraordinary ability in the arts is not the applicable classification.

A petitioner sponsoring an 0-1 athlete cannot seek consideration of the petition under the lower standard of "distinction" by characterizing the beneficiary's non-creative field as falling within the field of arts. The Petitioner has not sought the correct 0-1 visa classification for the Beneficiary, nor has it addressed the criteria and standards for individuals of extraordinary ability in athletics as set forth at 8 C.F.R. § 214.2(o)(iii)(A) or (B). As the Beneficiary's occupation does not fall within the 0-1 classification requested on the petition, the petition may be denied for this reason alone. Brazil Quality Stones, Inc. v. Chertoff, 286 F. App'x 963, 965 (9th Cir. 2008).

C. Evidentiary Criteria

In addition to our finding that the Beneficiary is not engaged in the field of arts, we find that, regardless, the Petitioner has not demonstrated the Beneficiary's extraordinary ability. The Petitioner does not assert, and the record does not reflect, eligibility under 8 C.F.R. § 214.2(o)(3)(iv)(A), which requires nomination for or receipt of a significant national or international award or prize. Accordingly, the Petitioner must satisfy at least three of the six regulatory criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). 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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l).

The Director concluded that the record did not contain critical reviews, advertisements, publicity releases, publications, contracts, or endorsements required by the regulation. On appeal, the Petitioner contends that the Beneficiary served in a leading role for and the Petitioner by preparing horses for sale at prestigious auctions sponsored by and At issue under this criterion are the reputation of the events and the nature of the Beneficiary's participation during those occasions.

1 If the criteria do not readily apply to the Beneficiary's occupation, a petitioner may instead submit comparable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(C). The Petitioner in this matter has not advised that it is relying on comparable evidence. Regardless, as noted above, the Petitioner filed under the arts for an athletic position. A petitioner may not avail itself of the comparable evidence provision by filing in the wrong classification.

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Regarding the reputation of the events, the Petitioner offered a news article confirming that contributes hundreds of millions of dollars to the Kentucky, economy

between its "boutique race meets in the spring and fall and world-renowned horse sales." website materials characterize its "sale of selected yearlings as one of the premier horse

actions in the world," with "roots that stretch back to The record demonstrates that they enjoy a distinguished reputation.

The record contains some documentation pertaining to the Petitioner's participation at these events. An article about horse sales at mentions that owners of a horse farm in California purchased a filly "from an agent for [the Petitioner]" at the auction. With respect to the Beneficiary's role, the appellate brief concludes that it is "critical and leading" because he is "the only assistant trainer on staff." This statement, however, refers to the role of the Beneficiary within the operations of and the Petitioner and does not speak to his significance to the

and auctions. The press materials in the record reference his observation of a horse that had deteriorated, his presentation of a plaque to a jockey, and the success of horses he trained for his own company, The letters note the Beneficiary's knowledge and hard work. While the position of assistant trainer may be valuable to the employer, the Petitioner has not supplied the necessary documentation corroborating that the Beneficiary has performed as a lead or starring participant during consignments for or auctions, the identified productions and events.

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, tradejournals, magazines, or other publications. 8 C.F.R. § 214.2(o)(3)(iv)(B)(2).

The record includes three articles that mention the Beneficiary. They reference his observation of a horse that had deteriorated, his presentation of a plaque to a jockey, and the success of horses he trained for his own company, The Director concluded the pieces did not show national or international recognition of the Beneficiary's achievements that the Petitioner had not documented the circulation of the newspapers that carried the articles. The Petitioner, however, does not address this criterion on appeal. Without more information about the publications in which these materials appeared, the Petitioner has not demonstrated that the articles show national or international recognition for the Beneficiary's achievements.

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(o)(3)(iv)(B)(3).

As noted above, the Petitioner seeks to employ the Beneficiary as an assistant trainer/rider. He has also worked as an assistant trainer for The Petitioner's own website indicates that it is "one of the perennial leaders in the consignment arena." Assuming both the Petitioner and

are organizations with a distinguished reputation, we turn to the Beneficiary's role for these stables.

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The Petitioner's website profiles its owner, sales coordinator, and bloodstock specialist, but not the Beneficiary. None of the press coverage of the Beneficiary relates to his employment for these two companies. The only testimonial regarding the Beneficiary's role for one of these organizations is from who contends that an assistant trainer is important because he fills in for the trainer and serves as another pair of eyes. To satisfy this criterion, however, the significance of the position to the employer must go beyond what it requires for the business to operate. An employer generally hires workers only when they are necessary. Concluding, however, that every filled position is lead, starring, or critical would render those terms meaningless. general statement that assistant trainers are "very important" because they perform necessary duties in support of the trainer does not confirm, by a preponderance of the evidence, that the role is a qualifying one.

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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(4).

The Petitioner does not address this criterion on appeal. Previously, the Petitioner maintained that newspaper articles confirmed the Beneficiary's "major commercial or critically acclaimed successes." The first article is about the recovery of a horse the Beneficiary trained, after veterinarians stopped her heart, thereby resetting the rhythm. A second article focuses on the Beneficiary's presentation of a gift to a jockey. The Petitioner does not explain why these occurrences show critically acclaimed success. The remaining article discusses the success of horses that the Beneficiary trained for his own barn, noting he "claimed [a horse] for $6000 and after a couple of second place finishes the horse was claimed for $20,000." While this indicates a level of achievement, the criterion requires evidence of "major commercial" success. Other articles about the and auctions, however, reflect that racing horses can sell for over $1 million. Thus, the record does not demonstrate the Beneficiary's major commercial or critically acclaimed success.

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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6).

The Petitioner indicated that it would compensate the Beneficiary $67,000 per year. The record contains information from reflecting that the average salary for an assistant trainer is $22,000, as well as pay statements for the Beneficiary. The Director found that the Beneficiary meets this criterion and the record supports that conclusion.

For the above reasons, the Petitioner has only satisfied a single criterion; the regulation requires that a Beneficiary meet at least three. Accordingly, it has not documented the Beneficiary's extraordinary ability.

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D. Consultation

As an additional issue, the record does not contain a consultation from an appropriate U.S. peer group or person with expertise in the field. 2 The only letters in the record are brief recommendations characterizing the Beneficiary as hardworking, and a longer letter from of

the Beneficiary's prior employer. Notably, affidavits from experts should detail the individual's recognition and ability or achievement and set forth the expertise of the affiant. 8 C.F.R. § 214.2(o)(2)(iii)(B). None of the references provided, however, satisfies these requirements.

First, the letters do not describe the Beneficiary's achievements in the field or the nature of the duties to be performed, with reference stating only that the Beneficiary would fill in for the trainer on occasion and serve as an extra pair of eyes. Similarly, the letters do not state that the position requires the services of an individual of extraordinary ability, with affirming only that an assistant trainer is an important part of any stable. Lastly, although owns a stable, the documents provided do not otherwise demonstrate the expertise of her or the other recommendation writers. For these reasons, the letters provided do not satisfy the consultation requirement.

III. CONCLUSION

The Petitioner has not demonstrated that the Beneficiary's employment falls under the arts. Regardless, the Petitioner has not satisfied at least three of the regulatory criteria to show extraordinary ability in the arts. Finally, the record does not contain the necessary consultation.

ORDER: The appeal is dismissed.

Cite as Matter of B-S-, LLC, ID# 310276 (AAO May 24, 20 17)

2 Although 8 C.F.R. § 214.2( o )(2)(ii)(B) allows for a waiver of the consultation if the beneficiary seeks readmission to the United States to perform similar services within two years of a previous consultation, we note that, in this case, the Beneficiary's previous 0 visa approval occurred over two years ago.