U.S. Citizenship and Immigration Services

MATTER OF C-P-LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 8, 2019

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner is al I limited liability company formed in 2017 by the Beneficiary to support and promote performing artists and performing arts organizations. The Petitioner filed this nonimmigrant visa petition seeking to classify the Beneficiary as an 0-1 nonimmigrant, a visa classification 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. See Immigration and Nationality Act (the Act) section 10l(a)(15)(O)(i), 8 U.S.C. § 1101(a)(15)(O)(i).

The Petitioner currently employs the Beneficiary as its principal pursuant to an approved 0-1 petition and seeks to extend her 0-1 status for a period of one year. The Petitioner asserts that the Beneficiary has worked as an arts administrator for performing arts organizations in l I focusing on developing marketing efforts, fundraising initiatives, operational management systems, and budgets, among other responsibilities. With regard to the arts, the Petitioner claims that "[ u ]nlike other forms of administration, arts administration at a small organization servicing the performing arts, such as [the Petitioner], is an inherently creative and artistic position."

After issuing a request for evidence (RFE) and then considering the evidence of record, the Director denied the petition, concluding that the exhibits did not satisfy, as required, the evidentiary criteria applicable to individuals of extraordinary ability in the arts: a significant national or international award, at least three of six possible forms of documentation, or comparable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(C). Additionally, the Director determined that the Petitioner did not establish that the Beneficiary is coming to the United States to continue work in the area of extraordinary ability or achievement as it did not initially submit, as required, a contract or summary of the oral agreement between the parties or a description of the event. 8 C.F.R. § 214.2(o)(3)(i). The Director further found that the Petitioner has not established that it is a bona fide "United States employer" under 8 C.F.R. § 214.2(o)(2)(i), or otherwise an "importing employer" under section 214(c)(l) of the Act, finding that it appears the Beneficiary has "petitioned on [her] own behalf." Finally, the Director determined that the Petitioner did not provide a copy of the previously obtained consultation submitted within two years to support its request for a waiver of a consultation in the instant case. 1

1 The Beneficiary, ~ _____ lcitizen, was approved for a nonimmigrant HJ B visa with the!.__ _______ _,

Matter of C-P- LLC

In its appeal, the Petitioner asserts that sufficient evidence establishes the Beneficiary's distinction in the field and that the Director erred in her application of the regulations and her analysis of the evidence in this case. The Petitioner submits additional evidence in support of the appeal.

Upon de nova review, we will dismiss the appeal.

I. LAW

As relevant here, section 10l(a)(l5)(O)(i) of the Act establishes 0-1 classification for an individual 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. Department of Homeland Security (DHS) regulations define "extraordinary ability in the field of arts" as "distinction," and "distinction" as "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 well­known in the field of arts." 8 C.F.R. § 214.2(o)(3)(ii).

Next, DHS regulations set forth the evidentiary criteria for establishing a beneficiary's sustained acclaim and the recognition of achievements. A petitioner must submit evidence either of "significant national or international awards or prizes" such as "an Academy Award, an Emmy, a Grammy, or a Director's Guild Award," or of at least three of six listed categories of documents. 8 C.F .R. § 214.2(o)(3)(iv)(A)-(B). If the petitioner demonstrates that the listed criteria do not readily apply to the beneficiary's occupation, it may submit comparable evidence to establish eligibility. 8 C.F.R. § 214.2(o)(iv)(C).

The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994)('The evidence submitted by the petitioner is not the standard for the classification, but merely the mechanism to establish whether the standard has been met."). Accordingly, where a petitioner provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the totality of the record and the quality of the evidence shows extraordinary ability in the arts. See section 10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 2

Section 214(c)(l) of the Act further provides, in relevant part (emphasis added):

The question of importing any alien as a nonimmigrant under subparagraph (H), (L), (0), or (P)(i) of section 10l(a)(l5) (excluding nonimmigrants under section 101(a)(15)(H)(i)(b)(l)) in any specific case or specific cases shall be determined by the

from August 28, 2013 to February 19, 2015, and three times for a nonimmigrant 0-lB visa, with the I I LJd.b.a.l I from June 10, 2015 to March 31, 2018,I , ~ litom April 20, 2016 to

March 31, 2018, and as the principal for the Petitioner from January 8, 2018 until March 31, 2018. 2 See also Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010), in which we held that, ·'truth is to be determined not by the quantity of evidence alone but by its quality."

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Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition shall be in such form and contain such information as the Attorney General shall prescribe. The approval of such petition shall not, of itself: be construed as establishing that the alien is a nonimmigrant.

The regulation at 8 C.F.R. § 214.2(o)(2)(i) additionally states, in pertinent part (emphasis added):

An 0-1 or 0-2 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. For purposes of paragraph ( o) of this section, a foreign employer is any employer who is not amenable to service of process in the United States. A foreign employer may not directly petition for an 0 nonimmigrant alien but instead must use the services of a United States agent to file a petition for an O nonimmigrant alien. A United States agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept services of process in the United States in proceedings under section 274A of the Act, on behalf of the foreign employer. An O alien may not petition for himself or herself.

The regulation at 8 C.F.R. § 214.2(o)(2)(ii) continues to state the general evidence required to accompany a petition:

(A) The evidence specified in the particular section for the classification;

(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;

(C) An explanation of the nature of the events, or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and

(D) A written advisory opinion(s) from the appropriate consulting entity or entities.

II. ANALYSIS

A. Introduction

The evidence indicates that the Beneficiary attended! I University in F-1 student status between 2010 and 2015. Subsequently, between 2015 and the date when the instant petition was filed on March 26, 2018, the Beneficiary was employed as an arts administrator by several performing arts organizations inl I and, most recently, as the principal of the petitioning organization. The Petitioner asserts that the Beneficiary is an arts administrator of extraordinary ability, and describes her position with it as a continuation of her duties as an arts administrator, applying "her creative acumen to marketing efforts, fundraising initiatives, and operational management systems, including overseeing performers and developing realistic budgets given a performance's specific needs." As

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mentioned previously, the evidence indicates that the Beneficiary's position as an arts administrator involves the business operations of arts organizations.

B. Eligibility Criteria

We agree with the Director's conclusion that the submitted evidence does not satisfy the evidentiary criteria applicable to individuals of extraordinary ability in the arts. As a preliminary matter, although not directly discussed in the Director's decision, we find that the Petitioner has not established that the Beneficiary is primarily involved in a creative activity or endeavor, such that she might qualify under the "distinction" standard for the arts. 3 While the Beneficiary's job duties as principal of the petitioning organization may be related to the arts based on the nature of the Petitioner's business, the Petitioner has not demonstrated that the Beneficiary is primarily engaged in a "creative activity or endeavor" as a creator, performer, or an essential person similar to those occupations listed in the definition. Id. Instead, based on the Petitioner's description of the job duties, the Beneficiary is primarily engaged in the field of business as the Petitioner's principal.

Regardless, we find the Director appropriately reviewed the petition according to the classification requested on the Form I-129. U.S. Citizenship and Immigration Services (USCIS) will only consider the visa classifications that the petitioner annotates on the petition. The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the specifically requested classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil Quality Stones, Inc. v. Chertoff, 286 Fed. Appx. 963, 2008 WL 2743927 (9th Cir. July I 0, 2008).

The issue to be addressed is whether the Petitioner submitted evidence to establish that the Beneficiary satisfies the evidentiary criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), or at least three of the six criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). In denying the petition, the Director determined that the evidence submitted meets none of these criteria. On appeal, the Petitioner maintains that the exhibits satisfy three of the criteria at 8 C.F.R § 214.2(o)(3)(iv)(B)(l)-(6). We will analyze the evidence submitted under each of those criteria below. 4 We have considered the record in its entirety in reaching this decision. As discussed below, we conclude that the record does not satisfy at least three of those listed categories of documents.

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

3 The regulation at 8 C.F.R. § 214.2(o)(3)(ii) defines the term arts: Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

4 The Petitioner does not contest the Director's finding that it has not claimed to satisfy the criteria at 8 C.F.R § 214.2(o)(3)(iv)(B)(2), (4), or (6). Accordingly, we will not address those criteria in the decision.

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evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l).

To satisfy this criterion, the Petitioner has submitted evidence pertaining to the Beneficiary's past and proposed work as an arts administrator. It maintains on appeal that she ~layed a critical role on several theater productions including'---~----------' j J and I I The evidence submitted includes testimonial letters, some of which contain information that is relevant to this criterion. 5 I I producing director for.__ _________ ~ inl l states that the Beneficiary performed in a "leading role" as an arts administrator for the 2013 rerun of the

production'----~-------' at '----------------~ ~--------' Theatre. She indicates that the job of an arts administrator is "promoting and ensuring the success of a show." She states that the Beneficiary andDs director, I I were the production's arts administrators.

~----~~ asserts that between 2012 and 2015, the Beneficiary was D's first general manager, and played a "critical and starring" administrative role in the company's production of its multimedia performance project .__ ________ _____., with duties that included staffing, scheduling, budgeting, fondraising, marketing, and a community engagemrt pTgram. The Petitioner provided two letters from I I, a production designer with who states that the Beneficiar~ was integral to the planning and execution of D's annual gala and its 2015 Kickstarter campaign. I !indicates the Beneficiary focused on marketing strategy, ticketing, finance, contracting hires, and negotiating rehearsal and performance venues. On appeal, the Petitioner provides an additional letter froml !stating that the Beneficiary played a "lead role" as an arts administrator for c=Js productions in "steering the marketing, ticketing, operations and finance behind each production."

On appeal, the Petitioner provides additional letters from employers and colleagues of the Beneficiary. I , I formerly executive director otD a I I community and cultural organization, describes the Beneficiary~ne of the finest Arts Administrators working today," and states that the Beneficiary worked on L_J s fondraising campaigns, the pilot season of its podcast I I expanding its "programs and communications to digital platforms," and redesigning the company's website. The Petitioner also submitted a letter froml I who worked with the Beneficiary o~'s website redesign project, stating that the Beneficiary played "a critical role" on that project.

The maJonty of the letters speak of the Beneficiary in terms of her business responsibilities, specifically staffing, scheduling, budgeting, fondraising, and marketing for their theatrical productions. While this might constitute an administrative support function of a theatrical production, it does not rise to the level of performing services as a "lead or starring participant" when compared to the featured actors of a theater production. Further, the regulation requires evidence in the form of critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. We consider the letters below in our discussion of the criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3).

5 While we discuss only a sampling of the letters submitted, we have reviewed and considered each one.

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Matter of C-P- LLC

The Petitioner also provided several published materials about the theatrical productions I I l I 11 I and l l however, the articles do not'-m-en-t1-·o-n-th_e__. Beneficiary. Therefore, these materials do not establish that the Beneficiary performed a role for those productions consistent with a lead or starring level of participation. Upon review, the evidence does not establish that the Beneficiary, as an arts administrator with responsibility for staffing, scheduling, budgeting, fundraising, and marketing for several theatrical productions, has performed a lead or starring role in them as contemplated in the regulations governing extraordinary ability in the arts.

Moreover, in order to meet this criterion, the Petitioner must establish that, upon approval of the petition, the Beneficiary will perform services as a lead or starring participant in productions or events that have a distinguished reputation. The Petitioner's initial submission did not contain a copy of a contract or a summary of any oral agreement that would define the Beneficiary's emplovment. Within its RFE res1zonse, the Petitioner submitted a job offer letter from I _ I

I ~ ,I, for the Beneficiary's employment in the role of Associate Producer forl Is spring tour from October 2018 to April 2019. The job offer emphasizes her role administering and promoting productions, indicating she will "coordinate logistics for our spring tour and revamp our online marketing." On appeal, the Petitioner provides a signed employment agreement between I land the Beneficiary, as principal for the petitioning rmpany. The agreement states that the Beneficiary will "act as Associate Producer for the s productions I 0,1 I J I and other general op._e_r-at-in_g_r-es_p_o_n_s_ib_i_li-ti-es ___ ,,__.

However, the job offer letter and employment agreement are dated September 19, 2018 and October 1, 2018, respectively, after the date the petition was filed on March 26, 2018. The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l).

In sum, the Petitioner has neither identified nor documented through submission of the evidence prescribed by regulation, the Beneficiary's previous or forthcoming lead or starring role in events with a distinguished reputation. In light of the above, the Petitioner has not established that it meets this criterion.

Evidence that the alien has performed, and will perform, in a lead, starring, or critical role/or 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).

To meet this criterion, the Petitioner cites to evidence pertaining to the Beneficiary's past and proposed work as an arts administrator. The record includes testimonial letters that the Petitioner asserts contain information that is relevant to this criterion. The previously discussed letter from~---~-­states that between 2012 and 2015, in her role asOs first general mana

9er, the Beneficiary played

a critical and starring administrative role in the company's production I I through duties which include staffing, scheduling, budgeting, fundraising, marketing, and a community engagement program. The Petitioner provided two letters froml I general manager o±1 I and presiden~~-------~ who indicates that between 2011 and 2013 the Beneficiary worked forL__J as a general management intern, draftin

9 contracts and internal

communications. She also worked as a social media manager for the 2014 L I

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Matter of C-P- LLC

festival, managing its social media marketing calendar and paid advertisements. The aforementioned letters ofl I andl . I highlight the Beneficiary's work expanding~s programs and communications to digital platforms and redesigning the company's website.

In addition, the record contains two letters from I I executive producer of thel I Festival inl I New York, stating that in 2012 the Beneficiary was an intern and assistant to the communications director of the festival, and was part of the pre-production staff that supported "both the production management and artist contracting/relations." The Petitioner also brovided a letter from I , la member of the advisory board at thel , indicating that the Beneficiary's work as an arts administrator required her to formulate a marketing strategy, handle all press and media relations, and track expenses for the ensemble.

A leading or starring role should be apparent by its position in the overall organizational hierarchy and through the role's matching duties. A critical role should be apparent from the beneficiary's impact on the organization or the establishment's activities. The beneficiary's performance in this role should establish whether the role was critical for the organization or establishment as a whole. The letters submitted do not satisfy this criterion. The Beneficiary's past work for those organizations was consistent with that of an arts administrator, but did not establish that she performed in a lead, starring, or critical role for those organizations.

While a company's staff may consider the Beneficiary's achievements to be of great benefit to the company, the focus of this criterion, based on the plain language of the regulation, is the Beneficiary's role itself. Although the letters submitted speak highly of the Beneficiary's performance for the companies with which she has worked, they do not establish that she was responsible for their success or standing to a degree consistent with the meaning of having performed in a "lead" or "critical" role for them. The letters show that her work was consistent with that of an arts administrator, and they describe her as having achieved results that met or exceeded those companies' expectations.

The letters do not establish that her role as an arts administrator has been a lead or critical role for those companies. For example, whilel landl ~ndicate that between 2011 and 2013 the Beneficiary worked as an intern to the managing and communications director of their organizations, their letters do explain how she was responsible for their organization's success or standing to a degree consistent with the meaning of a "critical role." In addition, whilel I asserts that the Beneficiary played a leading and critical administrative role in the company's production! lbetween 2012 and 2015, he does not explain the importance of her role in that specific theater production to the overall organization. Based on the above, the evidence submitted does not establish that the Beneficiary's past roles or responsibilities for those establishments were in a lead, starring or critical capacity.

Further, the evidence does not establish how the Beneficiary will perform in a lead, starring or critical role for the petitioning organization. As discussed previously, the Petitioner's initial submission did not contain a copy of a contract or a summary of any oral agreement that would define the Beneficiary's employment. Within its RFE response, the Petitioner submitted a job offer letter from I I for the Beneficiary's employment in the role of Associate Producer to administer and prom~ing tour. On appeal, the Petitioner provides a signed employment agreement between L___J and the

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Beneficiary for her to act as Associate Producer for I I's spring tour and perform "other general operating responsibilities." As mentioned above, the job offer letter and employment agreement are dated September 19, 2018 and October 1, 2018, respectively, after the date the petition was filed on March 26, 2018. The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Regardless, that evidence does not establish how, in her proposed role as producer for the tour, she will perform in a leading role fo~ I or be responsible for the organization's success or standing to a degree consistent with the meaning of a "critical role." In light of the above, the Petitioner has not established that the evidence satisfies this criterion.

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. 8 C.F.R. § 214.2(o)(3)(iv)(B)(5).

The Petitioner asserts that the aforementioned testimonial letters satisfy this criterion, because they "highlight [the Beneficiary's] sterling reputation in the arts community, thanks to the elite-level Art Administrator services that she provides to several esteemed organizations and productions."

The Director determined that the testimonial evidence in the record does not satisfy this criterion, and we agree. The letters submitted are from representatives of the Beneficiary's own former employers and colleagues. They discuss her talents as an arts administrator and indicate that she performed her duties admirably. While the authors of the letters speak highly of the Beneficiary, the testimonial letters do not recognize her for any specific or significant achievements in the arts.

USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron Int'l., 19 I&N Dec. 791, 795 ( Comm'r 1988). However, USCIS is ultimately responsible for making the final determination regarding a beneficiary's eligibility for the benefit sought. The submission of testimonial or expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may give less weight to an opinion that is not corroborated or is in any way questionable. Matter of Caron Int'l., 19 I&N Dec. at 795. Based on the foregoing, the petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(5).

In sum, the Petitioner has not submitted qualifying material under 8 C.F.R. § 214.2(o)(3)(iv)(A) and the exhibits do not satisfy at least three criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B) or the comparable evidence provision at 8 C.F.R. § 214.2(o)(3)(iv)(C). Consequently, the Petitioner has not established that the Beneficiary is eligible for the 0-1 visa classification as a foreign national with extraordinary ability in the arts. Accordingly, the appeal will be dismissed for this reason.

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Matter of C-P- LLC

C. Failure to Fully Respond to USCIS Request for Evidence; Bona Fide U.S. Employer and Bona Fide Employment

As noted by the Director, the regulations governing 0-1 nonimmigrants expressly preclude an "O alien" from petitioning for himself or herself. 8 C.F.R. § 214.2(o)(2)(i); see also 59 Fed. Reg. at 41829 (citing to the "importing employer" requirement at section 214( c) of the Act for the proposition that an O alien may not self-petition). The regulations interpret the statute to permit petitions 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( o )(2)(i). The regulations provide conditions and evidentiary requirements for each of these filing circumstances. See 8 C.F.R. §§ 214.2(o)(2)(ii) and (iv).

The Petitioner filed the present petition as an employer, not as a United States agent or a foreign employer. Accordingly, the petition is governed by the general evidentiary requirements at 8 C.F.R. § 214.2( o )(2)(ii) and (iii). The Petitioner's initial evidence included an unsigned copy of its operating agreement dated June 30, 2017, and its articles of organization filed with the I I State Department of State on June 28, 201 7. The operating agreement indicates that the Beneficiary, as the petitioning compary' s sole I member, manages its business, affairs, and property. Further, as noted by the Director, although I I signed the instant petition as the Petitioner's "Board Director" his role is not mentioned in the articles of organization, and the petition indicates "the Beneficiary is the sole member of [the petitioning organization]."

Regarding the Beneficiary's employment, the regulation requires evidence of written contracts or, if there is no such contract, a summary of the terms of the oral agreement under which the beneficiary will be employed. Id. at (B). As previously mentioned, within the initial submission, the Petitioner did not submit a copy of a contract or a summary of any oral agreement that would define the Beneficiary's employment. Prior to entering a decision, the Director requested additional evidence and offered the Petitioner an opportunity to submit the contracts and otherwise establish that it is a bona fide United States employer under 8 C.F.R. § 214.2(o)(2)(i).

In the RFE, the Director requested additional evidence to include, among other items, copies of any "written contracts" between the employer and the Beneficiary. The Director also requested evidence pertaining to the petitioning organization including: signed copies of the Petitioner's Federal income tax filings, any documentation demonstrating the structure of the petitioning organization; a list of the members and roles of the organization; evidence that the Petitioner is conducting business, such as invoices and payments for services provided in the United States; and a copy of the Petitioner's lease agreement.

The Petitioner's response to the RFE did not include all of the requested evidence. Regartng thel Beneficiary's employment, the Petitioner submitted the aforementioned job offer letter from dated September 19, 2018, for the Beneficiary's employment in the role of Associate Producer for I ts spring tour, dated after the date the petition was filed on March 26, 2018. The Petitioner's initial evidence did not include a copy of a contract or a summary of any oral agreement, despite the requirement at 8 C.F.R. § 214.2(o)(2)(ii)(B). With respect to the requested information pertaining to its

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organization, the Petitioner did not address this request and did not submit the requested evidence. The Director determined that the evidence submitted did not clearly establish that the Beneficiary is corning to the United States to continue work in the area of extraordinary ability or achievement, pursuant to 8 CFR §214.2( o )(3)(i), and noted the evidence showed that the Beneficiary has worked as a digital marketing consultant and arts administrator or assistant for various theatrical organizations, while a proffered job is for the role of "Associate Producer." The Director concluded that the Petitioner submitted insufficient documentation about the Beneficiary's proposed role and questioned whether the record showed non-speculative employment to cover the requested period.

Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Here, the requested evidence was material to the Beneficiary's eligibility. Without the evidence, USCIS is unable to determine whether there is a bona fide "United States employer" under 8 C.F.R. § 214.2(o)(2)(i). See also section 214(c)(l) of the Act (referencing an "importing employer"). Similarly, without any evidence of a contract or similar documents as required under 8 C.F.R. § 214.2( o )(2)(ii)(B), USCIS is unable to determine the actual terms and conditions of the Beneficiary's employment.

The record reflects that the Beneficiary owns the petitioning corporation. By itself, the Beneficiary's ownership of the petitioning company does not lead to the conclusion that she is petitioning for herself: as prohibited by 8 C.F.R. § 214.2(o)(2)(i). To the contrary, it is well established that a corporation is a separate and distinct legal entity from its owners or stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). Therefore, despite the Beneficiary's ownership, the corporate Petitioner remains a separate legal entity existing apart from the Beneficiary.

However, given the lack of required evidence, it was appropriate and reasonable for the Director to inquire beyond the corporate form and examine the bona fides and standing of the legal entity as a "United States employer" under the regulations. As the visa classification requires a bona fide United States employer and definite, non-speculative employment associated with the Beneficiary's extraordinary ability, the purpose and process of the 0-1 nonirnrnigrant visa would not be served by the skeletal documentation in this particular case. See 8 C.F.R. §§ 214.2( o )(2)(i), (ii), and (iii). In this regard, the Director's request for the documents requested in the RFE was reasonable and material to the Petitioner's eligibility.

The Petitioner has proffered additional evidence with the appeal, including documents that the Director requested through the RFE. Specifically, it offers the aforementioned signed employment agreement dated October 1, 2018 between! I and the Beneficiary, as principal for the Petitioner. It also provides an amended Operating Agreement dated September 1, 2018. However, the employment agreement and amended Operating Agreement are dated after the date the petition was filed on March 26, 2018. As previously stated, the Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b )(1 ). For this additional reason, the appeal will be dismissed.

D. Consultation

The Petitioner marked on the Form 1-129 that the instant petition represents a "continuation of

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previously approved employment without change with the same employer," indicating it was filing for an extension of visa petition validity as contemplated by the regulation at 8 C.F.R. § 214.2( o )(11 ), which pertains to a request to allow an alien "to continue or complete the same activities or events specified in the original petition." As mentioned previously, a review of USCIS records indicates that the Petitioner's previous petition filed on behalf of the Beneficiary was approved, granting her 0-1 status from January 8, 2018 until March 31, 2018.

The Director denied the instant petition, concluding that the Petitioner did not provide a written advisory opinion from the appropriate consulting entity or entities, pursuant to 8 C.F.R. 214.2(o)(2)(ii)(D). The regulation at 8 C.F.R. § 214.2(o)(5)(i)(A) provides that consultation with an appropriate U.S. peer group, labor and/or management organization regarding the nature of the work to be done and the alien's qualifications is mandatory before a petition for an 0-1 or 0-2 classification can be approved.

However, the regulations provide a waiver of the consultation requirement for certain aliens of extraordinary ability in the field of arts. Specifically, consultation for an alien shall be waived by the Director in those instances where the alien seeks readmission to the United States to perform similar services within two years of the date of a previous consultation. See 8 C.F.R. § 214.2(o)(5)(ii)(B). This regulatory provision farther states that "[p ]etitioners desiring to avail themselves of the waiver should submit a copy of the prior consultation with the petition and advise the Director of the waiver request." Id. The Petitioner advised that it was seeking such a waiver but it did not submit a copy of the prior consultation with the petition. The Director's RFE requested a copy of a previous consultation issued within two years. The Petitioner did not submit a consultation from a labor organization or peer group in response to the RFE, or otherwise acknowledge this portion of the RFE. Based on the foregoing, we agree with the Director's conclusion that the Petitioner has not submitted the required written advisory opinion from an appropriate consulting entity. Accordingly, the appeal will be dismissed for this additional reason.

E. Prior Approval

The record indicates that USCIS has previously approved petitions for 0-1 status filed on behalf of the Beneficiary. In the present matter, the Director reviewed the record of proceeding and concluded that the Petitioner did not meet all eligibility requirements for the requested classification. Based on the lack of required evidence of eligibility in the current record, we find that the Director was justified in denying the instant petition. We are not required to approve applications or petitions where eligibility has not been demonstrated because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). Further, our authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director has approved a nonimmigrant petition on behalf of the beneficiary, we are not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, *l, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).

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Matter of C-P- LLC

III. CONCLUSION

For the reasons discussed above, the Petitioner has not established that the Beneficiary is eligible for the 0-1 visa classification as a foreign national with extraordinary ability in the arts. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Skirball Cultural Center, 25 I&N Dec. at 806. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofC-P-LLC, ID# 4576389 (AAO Oct. 8, 2019)

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