RESPONSE TO FORM I-129 NOTICE of INTENT TO REVOKE (NOIR) O-1B ALIEN OF EXTRAORDINARY ABILITY IN THE ARTS July 13, 2015 U.S. Citizenship and Immigration Services Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479 Re: NOIR EAC-___________ REVOCATION WITH NOTICE [8 CFR§214.2(o)(8)(iii)(B)] I-129 Petition for Non-Immigrant Worker on behalf of ________ Dance, Inc. (DBA, __________ Dance Studio), Successor-in-Interest petition. EAC-___________ (Valid 05/06/15-05/05/18) [Petition approved for this petitioner as a Successor-in-Interest petition] Category: O-1B - Alien of Extraordinary Ability in the Arts – Mr. ______________, Third Renewal of O-1B status. [Previous O-1B petitions approved for this beneficiary: ________________________, Inc. (DBA, __________ _________________, EAC-12-124-5078 (Valid from 07/12/2012-04/28/15); ______________, LLC, DBA, __________ Dance Studio, EAC-11-_________ (Valid from 08/25/2011-08/14/2014) _______________ (DBA, __________), EAC-08-______ (Valid from 08/16/2008-08/15/2011)] Dear Sir/Madam:

With respect to the above-referenced case, a petition was approved for Mr. ______________ granting extension of O-1B status as an Alien of Extraordinary Ability in the Arts under 8 CFR §214.2(o)(3)(iv). Please note that this was clearly framed and approved on May 6, 2015 as a Successor-in-Interest petition. A Notice of Intent to Revoke (NOIR) was issued, dated June 16, 2015 under 8 CFR§214.2(o)(8)(iii)(B) allowing this petitioner to provide additional documentation or information in rebuttal.

Our response to your notice will generally follow the order of issues as they are

raised in the NOIR.

Please note that this is the THIRD petition for classification in nonimmigrant status APPROVED for this beneficiary. Your NOID states no specific grounds for revocation, and as we will show, is groundless and without support in fact or regulation.

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The Notice Misstates or Misconstrues the Regulatory Basis for Revocation of this Approved O-1B Petition

Under 8 CFR, there are two mutually exclusive bases for revocation of an approved O-1B petition that may be applied. The first general ground is Automatic Revocation without notice. [8 CFR §214.2(o)(8)(ii)] This may apply in cases of where the petitioner goes out of business or ceases to employ the beneficiary or the petition is withdrawn. The second ground, operative in this case, is Revocation with Notice [Notice at p.1]. [8 CFR §214.2(o)(8)(iii)(B)]. As your notice states:

(USIS) is authorized to question petition extensions when a substantial change in circumstances occurs, when relevant facts change from one petition to another, or when the prior approval may have been based on gross USCIS error.

This intent to deny seeks to establish that the petitioner qualifies for the benefit sought. The instant petition must be supported by its own documentation since factors can vary from petition to another.

While USCIS may indeed question petition extensions if a substantial change has occurred, or when relevant, material facts change from one petition to another, however, the time to do that has passed in this case. The present petition was approved based upon a complete record of facts documenting all potentially relevant changes. In fact, the petitioner identified all material changes that had occurred with regard to studio ownership, a minority interest having been assumed by the petitioner when the petitioner was reorganized last year. [See, Studio Letter, p.___ , Terms of Engagement Letter p. ___ , and Attorney’s Letter, p. ___ with referenced Exhibits ___, ____, ____] The record was updated to show the continuing dance activities of the beneficiary since the previous petition was approved three years ago and to provide an itinerary for future Dance Sport events. [See, Exhibits ___, ___, ___]

There were no other material or relevant changes since approval of the last petition, inasmuch as any additional duties of the beneficiary are incidental and the position remains predominantly that of a Dancer/Choreographer, as described in the present petition as well as the preceding petitions. A full and fair review of the record shows there has been no material change in fact or circumstance. [See, present petition, Exhibits ___, ___, ___; previous petition ___, ____, ___]

The record in this case includes previous O-1B petitions, and this petitioner, “________ Dance” is a successor-in-interest1 to the previous petitioner, “Midtown Dance”. The examiner who approved the present petition was free to RFE this petition

1 Successor-in-Interest petitions are recognized in the I-129 context. USCIS Policy Memorandum relevant to Form I-129 adjudications states that “the beneficiary will be treated as an extension petition.” [PM-602-0009: Implementation of Provisions of Public Law 111-230 Providing for Increased Fees for Certain H-1B and L Petitions (AFM Update AD10-48) pp. 1-2, ftn. 3.

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if any deficiency in the full record or unexplained material change warranted issuance. The approval of the petition indicates, in fact, indicates that objective factors indicated extension of O-1B status for the successor-in-interest petitioner and continuing O-1B nature of the beneficiary’s role. In addition, that examiner made a subjective determination that approval was again warranted on materially unchanged O-1B eligibility factors including the three-of-six criteria claimed. [8CFR §214.2(o)(3)(iv)(B)]

The Immigration and Nationality Act (INA) contains an exemption from filing a new I-129 in cases of corporate structuring where the new employer is a successor in interest that assumes the interests and the obligations of the prior employer. [INA § 214(c)(10)] This is a restatement of a prior USCIS policy, and states that if an employer, for H-1B and I-140 purposes (which carry over in this regard to O-1), “assumes the previous owner’s liabilities which include the assertions the prior owner made ” then there is no need for a new or amended petition.[USCIS Adjudicator’s Field Manual, § 31.2(e)2] If a new or amended petition is not needed, then the employer may wait until filing an extension petition for the employee to notify the USCIS.

As these petitions pertain to O-1 Outstanding Ability, and this is a Successor-in-Interest case, the regulations expressly allow that the extension petition rely upon relevant documentation submitted with the previous petition.

214.2(o)(11)

(11) Extention of visa petition validity. The petitioner shall file a request to extend the validity of the original petition under section 101(a)(15)(O) of the Act on Form I-129, Petition for a Nonimmigrant Worker, in order to continue or complete the same activities or events specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed only if the validity of the original petition has not expired.

Therefore, under the regulations, had the examiner found reason at the time of adjudication of the present petition to believe there was unexplained material change in the terms of employment, the examiner would have issued a Request for Evidence (RFE). As has been stated above, the present petition fully detailed changes to ownership and the fact that the beneficiary had taken a minority ownership interest in the studio. The petition specified that the beneficiary now has some managerial duties, but the position remained predominantly that of Dancer/Choreographer. [See, Ex. ____, Ex. ______] Therefore, the examiner noted no material change in the terms of employment, as there was none. Of course, there was no RFE issued, and the record could be presumed to be complete in the view of the examiner when the petition extension was approved.

As far as we can determine, the sole basis of this Notice to Revoke is a difference in opinion by the reviewing officer with the original examiner over subjective factors going to eligibility under the “three-of-six” criteria. As we will show, below, that 2 See, related, Memorandum for Regional Directors, et al. Subject: AFM Update: Chapter 22: Employment-based Petitions (AD03_01), p. 20 with regard to I-140.

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is not a valid basis for revocation under the regulations [8 CFR §214.2(o)(8)(iii)(A)] and is inconsistent with standing Service policy with regard to grounds for revocation [See, the 2004 Yates memorandum, “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,”3]

Notice is Procedurally Defective

Insofar as this Notice raises no changed material facts or circumstances as grounds for revocation – and those changes are not material on their face, it is defective. Given that the record was established in part based upon the previous petition, the Notice must articulate where in the record any material change might lie by reference to both petitions. The Notice makes no specific reference to the previous petition(s), therefore it is non-specific and fails to adequately articulate and advise the petitioner of where the perceived deficiency or material change might lie. There is no indication in the Notice issued that would lead an impartial reviewer to the conclusion the Notice author even reviewed the full record prior to issuance of the NOIR.

This Notice specifies no specific relevant change in material facts or circumstances since approval of preceding petition in 2012. Given that the present petition was approval on May 6, 2015, it is not plausible that there might be any change since then. Without specific reference to material change, the Notice is fundamentally unfounded in so far as revocation might be based in material change.

While the regulation allows that expired petitions may be revoked, [214.2(o)(8)(i)(B)] the Notice must identify and articulate the specific factor or circumstance on the record that has prompted revocation of the present petition. This Notice fails to articulate objective factors that might indicate material defects and the basis for revocation. The Notice does not articulate a “substantial change” or “relevant facts” that have changed, and specifies no objective grounds on which a conclusion that the extension of O-1B status was approved by USCIS “gross error.”

In the absence of change since approval, and with no hint of misrepresentation of fact or violation, we conclude that this NOIR was issued for "gross error," alone.

3 See, HQOPRD 72/11.3, April 23, 2004 (AILA InfoNet Doc. No. 04050510 (posted May 5, 2004; http://www.aila.org/content/default.aspx?docid=10654 ).

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Notice is Ambiguous on Regulatory Ground for Revocation

The Notice is ambiguous on this point – it questions subjective factors that go to

determine O-1B eligibility under the three-of-six criteria -- but, as there has been no material change since petition approval and no issue of fraud or violation raised about these factors we conclude that the NOIR was issued because the reviewer in this matter concluded the petition was approved on the basis of “gross USCIS error.” [8 CFR §214.2(o)(8)(iii)(A)(5)], and that the basis of the Notice is a difference of opinion with the original adjudicator over subjective factors. There is no objective basis cited consistent with the regulations for issuance of the Notice.

Indeed, there are only five grounds under the regulations on which this recently-approved petition might properly be revoked. [8 CFR §214.2(o)(8)(iii)(A)]

(A) Grounds for revocation . The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if is determined that: (1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition was not true and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated the requirements of section 101(a)(15)(O) of the Act or paragraph (o) of this section; or (5) The approval of the petition violated paragraph (o) of this section or involved gross error.

In fact, the NOIR is highly misleading, or misstates or misconstrues the bases on which a NOIR has been issued in this case insofar as it alludes to “a substantial change in circumstances occurs, when relevant facts change from one petition to another.”

This Notice is therefore defective because it is ambiguous on what regulatory ground it was issued, and because it does not adhere to current USCIS policy for revocation (fails to articulate “objective” evidence based in the record); The NOIR should be reconsidered and withdrawn.

Instead, the regulations which govern revocation of O-1 petitions state as follows:

214.2(o)(8)

(8) Revocation of approval of petition --

214.2(o)(8)(i)

(i) General .

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214.2(o)(8)(i)(A)

(A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of this section. An amended petition should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the Director who approved the petition.

214.2(o)(8)(i)(B)

(B) The Director may revoke a petition at any time, even after the validity of the petition has expired.

214.2(o)(8)(ii)

(ii) Automatic revocation . The approval of an unexpired petition is automatically revoked if the petitioner, or the named employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is no longer employed by the petitioner.

214.2(o)(8)(iii)

(iii) Revocation on notice --

214.2(o)(8)(iii)(A)

(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if is determined that: (1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition was not true and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated the requirements of section 101(a)(15)(O) of the Act or paragraph (o) of this section; or (5) The approval of the petition violated paragraph (o) of this section or involved gross error. (B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of the date of the notice. The Director shall consider all relevant evidence presented in deciding whether to revoke the petition.

214.2(o)(9)

(9) Appeal of a denial or a revocation of a petition -- (i) Denial. A denied petition may be appealed under 8 CFR part 103. (ii) Revocation. A petition that has been revoked on notice may be appealed under 8 CFR part 103. Automatic revocations may not be appealed.

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Furthermore, since the only relevant ground cited in the Notice refers to (A)(5), we must assume the evidence supports the following conclusions:

(1) The beneficiary is employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition are true and correct; (3) The petitioner has not violated the terms or conditions of the approved petition; (and) (4) The petitioner has not violated the requirements of section 101(a)(15)(O) of the Act or paragraph (o) of this section.

That leaves the only basis on which revocation might properly be carried out a

specification and showing of “gross error” under the applicable standards of evidence. The Notice is devoid of any articulation of objective factors that might reasonably

support the conclusion that approval of the petition was manifestly unfounded. There are no articulated reasons given that the original decision-maker failed to identify material facts or circumstance on the record. The Notice fails to identify gross error according to the preponderance of the evidence standard. Quite the opposite. We have searched the Notice, along with the record, and cannot find a single material fact cited or indication of objective finding in the approval that comes anywhere near the threshold of proof required for revocation by reason of “gross error.” Instead, we find the author of the Notice substitutes his or her own subjective judgment for the examiner. That method is inconsistent with regulation and Service policy, as will be shown below.

No “Gross Error” or “Material Error” in approval of this Petition – Notice substitutes “subjective” judgment in violation of standing Service policy

A gross error finding is reserved for cases involving manifest ineligibility for the status granted, or where an approval was improperly approved contrary to law or Service policy. This decision does not make reference to any such law, regulation or Service policy memorandum or authoritative source to support its finding that the eligibility determination was contrary to law or manifestly contrary to policy.

A "gross error" in H-1B adjudication has been held to be "unmitigated or absolute error."4 Where the original approval reflects gross error, it merits revocation under applicable regulations. [8 C.F.R. § 214.2(o)(8)(iii)(5)]. Gross error occurs when approval for a petition constitutes unmitigated or absolute error, such as an approval that was granted contrary to the requirements stated in the statute or regulations.

4 See, e.g., M.D. Mgmt. Co., LLC v. United States Dep't of Homeland Sec., Citizenship & Immigration Servs., 2005 U.S. Dist. LEXIS 843 (D. Mass. 2005).

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The standards for USCIS revocation of nonimmigrant petitions has been stated in the 2004 Yates memorandum, “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,”5 offers persuasive reasons for the policy in favor of leaving unchallenged the approval of a petition absent fraud, material error, or material change in circumstances. That directive states:

[A] recent review of CIS practices has shown that in certain instances, adjudicators have been questioning prior determinations where there is no material change in the underlying facts as a matter of routine, the below policy is being set forth.

Policy

In matters relating to an extension of nonimmigrant petition validity involving the

same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference. A case where a prior approval of the petition need not be given deference includes where: (1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

Material error, changed circumstances, or new material information must

be clearly articulated in the resulting request for evidence or decision denying the benefit sought, as appropriate. What is most significant here in the context of the regulatory “gross error” ground

for revocation is the memo’s definition of “material error” and the Associate Director of Operation’s admonition to examiners that they should not substitute their own subjective judgement on matters already determined by the initial petition adjudicator:

A material error involves the misapplication of an objective statutory or regulatory

requirement to the facts at hand. An example of the misapplication of the pertinent law or regulation is, but is not limited to, an H-1B petition approval where the beneficiary’s degree is not appropriate for the proffered occupation. Generally, adjudicators should not question prior adjudicators’ determinations that are subjective, such as the prior adjudicator’s evaluation of the beneficiary’s education, specialized training, and/or progressively responsible experience in a degree equivalency determination. [emphasis added]

Notably, the 2004 Yates Memo then goes on to specify seven nonexclusive

categories of nonimmigrant categories where changed circumstances since the approval of a non-immigrant petition might be warranted. These refer to specific circumstances in the H-1B, L-1A/B, and P-1 nonnimmigrant classes. O-1B is not mentioned.

5 See, HQOPRD 72/11.3, April 23, 2004 (AILA InfoNet Doc. No. 04050510 (posted May 5, 2004; http://www.aila.org/content/default.aspx?docid=10654 ).

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More recently, the Service has restated its interpretation of applicable standards

for revocation as follows:6

USCIS is guided by statutory authority at section 205 of the Immigration and Nationality Act (INA), regulatory provisions at 8 C.F.R. § 205.1 and 2, and Board of Immigration Appeals (BIA) precedent decisions in determining when revocation of a petition’s approval may be warranted. Those decisions include Matter of Ho, 19 I&N Dec. 582 (BIA 1988), Matter of Estime 19 I&N Dec. 450 (BIA 1987) and Matter of Arias, 19 I &N Dec. 568 (BIA 1988). A USCIS officer initiates revocation if s/he can articulate that the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his or her burden of proof.

While the burden is on the petitioner to establish eligibility for any benefit sought,

the Service’s Notice of Intent to Revoke must “articulate” the factors on the record at the time the petition is approved that warrant denial. Any factor warranting a finding of ineligibility found after approval of the petition must be firmly rooted in the language of the statute or regulation, and must make reference to specifics in the record. The legal standard cited in Matter of Ho, [at 589] pursuant to Matter of Leung, 12 I&N Dec. 1215 (BIA 1968) that applies to revocation is “for good and sufficient cause.” [§ 205 of the Act] This NOIR, nonetheless, fails to articulate specific evidence on the record that warrants such a denial, and does not show good and sufficient cause for revocation.

The Board found in Matter of Estime that Service bears the burden in issuing a

NOIR of articulating the reasons for its conclusion of ineligibility, the reasons for ineligibility must be supported by and identified in the record, and the petitioner must be advised of any derogatory evidence, and that if each of those steps are not carried out, the revocation cannot be sustained, even if the petitioner does not respond to every point made in the Notice. Revocation cannot be based upon unarticulated presumptions or an unsupported laundry list of demands for evidence: [at 452]

Where a notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained, even if the petitioner did not respond to the notice of intention to revoke.

Instead of reference to specifics on the record, this NOIR reads as if it was pulled

from an RFE template and is now requiring a restatement of evidence that is already on the record that was found by the initial adjudicator to warrant approval a mere 6 weeks earlier with no change in fact or circumstance cited, or any reason stated to doubt the validity of evidence supporting the petition. A NOIR is not a post-approval opportunity to RFE a petition. 6 See, Questions and Answers, USCIS Meeting with the American Immigration Lawyers Association (AILA), April 10, 2014. While we fully appreciate that such Q&A statements are not, in themselves, formally binding expression of USCIS policy, the case law referenced above is fully binding on Service Center adjudications.

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Therefore, we submit this NOIR is fundamentally at variance with the language of

the regulations governing revocation of approved O-1 petitions, and is contrary to case law and binding precedent as it articulates the burden of evidence and the circumstances when revocation may be warranted. Neither “gross error” nor “material error” (insofar as these standards may differ) has been shown in the initial visa petition determination.

NOIR Fundamentally Misconstrues the Regulatory Definition of O-1B Extraordinary Ability in the Arts

This petition for the beneficiary in the category for a "Dance/Choreographer" clearly fits the O-1B definition for "EXTRAORDINARY ABILITY IN THE FIELD OF ARTS." 8 CFR §214.2(o)(3)(iv)/ 8 C.F.R. 214.2(o)(3)(ii)

214.2(o)(3)(ii)

(ii) Definitions . As used in this paragraph, the term:

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.

Nonetheless, the NOID makes the assertion to the contrary that coaching is not a field in the arts. That is a fundamental error in law that misrepresents the regulatory definition of Arts. The Notice furthermore asserts that beneficiary will not be performing primarily as a Dancer/Choreographer, without referencing the specific items on the record that formed the basis for that conclusion. The Notice states as follows:

You, ________ Dance, Inc., d/b/a __________ Dance Studio, filed Form I-129, Petition for Nonimmigrant Worker, seeking 0-1B nonimmigrant classification for the beneficiary as a Dancer Choreographer. Based on the record, the beneficiary will be performing duties as a coach and Co-Director, neither of which fall under the 0-1B Arts classification. Below U.S. Citizenship and Immigration Services (USCIS) has addressed the classification you sought on Form I-129 Petition for Nonimmigrant Worker, 0 and P Classification Supplement to Form I-129 Petition for Nonimmigrant Worker, under Section 1, Part 3, which is 0- 1B Alien of extraordinary ability in the arts.

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However, please note fields in sciences, arts, education, business, or athletics fall under a different classification.

The record, in fact, shows that the petitioner meets the threshold requirement for eligibility under 8CFR §214.2(o)(3)(iv)(B). The position is described as a “Dancer/Choreographer” at Form I-129, Part 5, Item 1 with some additional duties related to dance coaching and dance studio management described in the supporting materials. . [See, Studio Letter, p.___ , Terms of Engagement Letter p. ___ , and Attorney’s Letter, p. ___ with referenced Exhibits ___, ____, ____] The record was updated to show the continuing dance activities of the beneficiary since the previous petition was approved three years ago and to provide an itinerary for future Dance Sport events. [See, Exhibits ___, ___, ___] A fair and reasonable reading of the record reveals that the position has been and remains predominantly that of a dancer and related to dance. Please note, also, that the record is clear that the beneficiary has been and will continue to be personally involved in carrying out the provision of the services provided by the petitioner, which is dance instruction. Thus, under the operative USCIS definition of “manager,” the beneficiary’s duties are not primarily “managerial,” as that term is properly construed. This Notice is therefore utterly groundless with regard to bases stated, and revocation should be reconsidered and withdrawn

Itinerary/Breakdown of Duties

The NOIR states: Nature of the Event or Engagement Petitions seeking O nonimmigrant classification must include an explanation of the competition, event, or performance in which the beneficiary will participate. An event means an activity such as a scientific project, conference, convention, lecture series, academic year, or engagement during the requested validity period. The description you submitted is insufficient. You provided an itinerary and copies of the National Dance Council of America's calendar of events. However, according to your support letter the beneficiary will not only be dancing, but will also be providing services as a coach and manager. These duties are not captured in the submitted itinerary. Please submit an itinerary indicating the percentage of time devoted to each duty; as a dancer, instructor, and manager. A fair and full review of the evidence reveals that, on its face, the beneficiary’s duties

remain essentially that of a dance instructor in a prestigious dance studio, not a manager as it is meant under USCIS regulations and policy. This is evident in all relevant and material evidence on the record. The I-129 petition describes the position as Dance/Choreographer. As the accompanying Studio Letter, Critical Role Memo and

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attached expert testimonial made clear, the beneficiary has assumed some managerial duties within this small studio (__ employees) but his duties have been and will continue to be primarily those of dance teacher and choreographer. Specifically, this evident fact is summarized at the attorney’s letter at 8:

________ Dance (DBA __________ Studio) is recognized for its Distinguished Reputation Mr. _________ is recognized within ____ for his extraordinary achievements as a leading teacher and competitor within the __________ organization, and his critical role in developing the 34 Dance (DBA __________ Studio), which is itself a leading ____ studio. As has been shown above, under his management and direction as minority owner, the studio is now the 3rd most successful franchise in the State of New York, an accomplishment that has been recently recognized along with individual awards to Mr. _________ as Top Male Teacher and Top Lessons. We attach at Exhibit 5 a letter from Jack ___________, President and CEO of __________ Franchised Dance Studios, Inc. recognizing the distinguished reputation of the petitioner and the beneficiary. Mr. __________, who has self-evident qualifications to make this assessment, writes:

I am proud to recommend Mr. ______________ as an extraordinarily talented [individual] who has been employed by our __________ Dance Studio in ________________. Mr. _________ came to us as a gifted and charismatic dancer from Ukraine. Over the years, as ____ developed his skills, he quickly proved to all that he is and continues to be recognized as an extraordinary and excellent Ballroom dancer, coach and choreographer.

As a result of his successes with the Midtown Studio, Mr. _________ became Co-Director of the Midtown __________ Dance Studio. Since this transition has taken place, the Studio has realized tremendous growth and development. It has risen through the ranks amongst the 16 New York State Dance Studios and it was recently ranked 3rd out of 16 in February, 2015.

The sponsoring studio, which itself is distinguished in its reputation, has been recognized for its successes with Mr. _________'s new responsibilities.

The studio remains in need of a dancer and choreographer to assist its Amateur and professional dancers in the style of International Standard and Latin, and American Smooth and Rhythm. Under new ownership, and the superior management input of the beneficiary, the studio is experiencing tremendous growth such that it has a roster of senior level instructors to continue to accommodate the large demand of dancers who are

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interested in competing for significant titles and showcase their talents and skills at various theatrical events.

On this point, we now submit additional evidence in the form of a breakdown of duties indicating the percentage of time devoted to each duty; as a dancer, instructor, competitor and studio manager. As acknowledged, we have previously submitted an Itinerary of competition events for the beneficiary, and indicated that the position remained predominantly studio dance instruction.

Furthermore, the beneficiary’s studio management duties do not rise to the level where the occupation might be primarily managerial in nature according to USCIS standards.

The current applicable standards for “manager” are most fully articulated in AAO case law for L-1A Managers. A typical AAO decision articulates these standards in practice as follows:

The petitioner has not submitted sufficient documentation in demonstrating that the [beneficiary] will perform duties which primarily require the [beneficiary] to plan, organize,direct and control the organization's major functions by working through other managerial or professional employees in the United States. A position will qualify as managerial or executive only if the duties are primarily managerial or executive in nature. First-line supervision of nonprofessional and non-managerial personnel does not establish eligibility. Further, a qualifying position does not include an employee who performs the tasks necessary to produce the product and/or to provide the service(s) of the organization.

The position held by the beneficiary, as described, is not on its face primarily managerial or executive in nature. Second, the position entails and will continue to entail the beneficiary performing the tasks necessary to provide the service of the organization, i.e., dance instruction.

Therefore, the managerial duties attendant to a minority ownership stake are not material to eligibility and a NOIR should not have been issued on this point. Nonetheless, the beneficiary breaks down his duties as follows:

[INSERT MEMO]

Consultation Letter

The Notice states:

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The consultation you submitted is insufficient. You provided a consultation letter from the American Guild of Musical Artists (AGMA) , dated ______, 2011. However, a consultation letter may not be used except on a request for extension of stay by the same petitioner, for the same beneficiary, to continue the same event. Each filing for a new event or by a new petitioner requires a new consultation. Since you are filing for new employment for a new event, a new consultation is required. You may submit a new consultation which meets the requirements specified below. As this is a Successor-in-Interest petition, and as the petitioner has assumed all

legal liabilities of the previous petitioner, this requirement should be treated as it would be if this were an extension. Nonetheless, because there is no clear Service policy that we could find on this subject, we herewith submit a new AGMA consultation at Exhibit ____.

Evidence of 0-1A Prominence in the Field of Endeavor, and Three-of-Six Criteria for O-1B

Insofar as this is a Successor-in-Interest petition, and the regulatory Three-of-Six criteria for O-1B eligibility has not changed -- and USCIS has published no new binding statements of change in relevant policy -- the petitioner has already established eligibility according to the O-1B definition as it stood at the time of approval of the present petition and approval of the previous approval in 2012.

The notice does not articulate specific reasons why the documents or information on

the record might be deficient. Furthermore, all criteria that go toward O-1B eligibility under the Three-in-Six criteria are subjective in nature, and the reviewer appears to be attempting to substitute his or her subjective judgment for the original examiners. This is an apparent violation of Service policy as stated in the Yates memo: [Id.]

Generally, adjudicators should not question prior adjudicators’ determinations that are subjective, such as the prior adjudicator’s evaluation of the beneficiary’s education, specialized training, and/or progressively responsible experience in a degree equivalency determination. [emphasis added]

These underlying factors that sustain continued eligibility have not changed, as they

go to facts and circumstances that occurred in the past, prior to approval of the last two petitions. The only factor which may have been effected by the passage of time is the question of whether the beneficiary will carry out O-1B duties during the duration of the present petition. Again, this is a subjective issue that has already been decided by the examiner a short time ago. The record fully sustains that finding. See _____, _____, ______.

The Notice does not articulate reasons based in the specific record for questioning

the beneficiary’s continued eligibility under the Three-of-Six criteria. For this reason, the petitioner is under no obligation to submit new evidence on these points, as the Notice

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simply lists the categories of evidence submitted (and provides an incomplete accounting) and cites nothing specific in that record that warrants revocation.

Significant National and International One-time Award – Not Relevant to O-1B Eligibility Criteria

The Notice states: You indicate that the beneficiary has been the recipient of national and international dance awards. These awards, although earned from national and international dance competitions, do not appear to be of a significant stature. The beneficiary does not meet this criterion because USCIS cannot determine that these dance awards are significant nationally or internationally recognized awards. You may still submit evidence to satisfy this option.

The actual regulation identifies this requirement as applicable to O-1A status, which is not the non-immigrant category granted. The regulation states on the O-1A eligibility criteria:

A. Eligibility under 8CFR§ 214.2(o)(3)(iv)(A), Evidence that the beneficiary has received significant national or international awards or prizes in the particular field

(A) Evidence that the alien has been nominated for, or has been 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;

As is evident from the plain-language of the regulation, this criteria essentially goes to eligibility for O-1A not O-1B status. The Notice fails to make that distinction. Another defect of the notice is that it makes reference to past events about which three examiners have already considered the record. Therefore, additional evidence on this point is not properly required at this time to determine eligibility for the benefit granted. A subjective determination has already been made on three occasions on this and other eligibility criteria bearing on past accomplishments of the beneficiary. Request for this evidence to make a subjective judgment is neither relevant (petitioner was not granted O-1A status) nor, even so far as it might be relevant to other criteria (such as leading or critical past role in a prestigious organization) [8CFR §214.2(o)(3)(iv)(B)(iii)]; revocation on this ground is inconsistent with Service policy as expressed in the Yates memo because these factors were already determined when O-1B status was granted in 2009, 2012, and May 2015, and no specific reason has been articulated to doubt the accuracy or relevance of the existing record.

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Nonetheless, we herewith submit additional evidence in response to your Notice that further demonstrates that Mr. _________’s past competition record qualifies under the criterion taking into account his significant national and international dance awards.

New Evidence Submitted:

[INSERT EXPERT LETTER RE: NATIONAL AWARDS]

Three-of-Six Criteria for O-1B status

B. Eligibility under the alternative three-of-six criteria [8CFR §214.2(o)(3)(iv)(B)]

The beneficiary meets the alternative standard for eligibility stated at 8 CFR. 214.2(o)(3)(iv)(B) according to the alternative three-of-six rule. The beneficiary has been found eligible for O-1B status three times by various USCIS examiners, most recently in May 2015, with evidence of at least three of the following criteria. USCIS policy is that revocations generally should not be based in redetermination of subjective matters, and that the judgment of the examiner who adjudicated the petition should not be second-guessed on subjective issues. [Yates memo, Ibid.]

The regulations state the full six (subjective) criteria are as follows:

[8CFR §214.2(o)(3)(iv)(B)]

i. 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

ii. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications

iii. Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.

iv. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or 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

v. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the beneficiary's achievements

vi. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

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The approach that has actually been taken in the Notice is to treat it as an RFE and

readjudicate the petition and to make judgments on subjective factors, including “sustained record of prominence,” “lead or starring role”, “distinguished reputation,” “critical role, ”major commercial or critically acclaimed successes,” “significant recognition,” “recognized experts” and “high salary.” The Notice summarizes its version of the O-1B criteria and the evidence on the record considered as follows:

Qualifying Criteria If you choose not to submit evidence of a one-time award, you may submit documentation of at least three of the criteria in this section. The beneficiary does not appear to satisfy three of the six criteria to show prominence in the field. You may still submit evidence to satisfy criteria in this section. The documentation you provide should show the beneficiary has a sustained record of prominence in the field of expertise. To satisfy these requirements, you submitted: A support letter; Copy of the beneficiary's membership card for the Ukrainian Dance Board 2005; Copy of the beneficiary's license as a judge in the sports ballroom dancing; Copy of the beneficiary's certificate as a judge at the International Tournament of sport dance "Rrem'era;" Copy of the beneficiary's diploma as a dance instructor from the Ukrainian Dance Board; Copy of a program; Information about __________ Dance Studio; Information about the National Dance Council of America; · Documentation of incorporation of ________ Dance Studio, Inc.; Various testimonial letters; · List of the beneficiary's prizes, placements, and awards in the field of ballroom dance; Copies of the beneficiary's awards; Copies of photographs; Proposed championships and competitions; and An excerpt from The Department of Labor's Office of Foreign Labor Certification Online Wage Library for dancers.

The above accounting of the record as contained in the Notice is deficient and incomplete, as will be shown, below, the beneficiary has clearly met the regulatory definition as an O-1B Alien of Extraordinary Ability as one who has demonstrated sustained national or international acclaim:

214.2(o)(1)(ii)(A)(1)

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An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability

The Notice is not based in the record. It does not accurately and completely reflect

the evidence submitted for the beneficiary of his sustained prominence. It does not accurately reflect the regulations and the three-of-six criteria. It fails to fairly and impartially assess the merits of the beneficiary’s specific international competition results as recently summarized with the petition [see, 2015 Petition, Attorney’s letter, pp. 3-6][reproduced below]. The individual defects of this part of the Notice can be broken down according to three categories: 1) Notice fails to assess evidence of “sustained national or international acclaim”; 2) Notice omits consideration of “testimonials” on the record as a basis for establishing evidence of sustained acclaim; and, 3) Notice is internally inconsistent with regard to its conflicting findings whether the petitioner has established itself as an organization of distinguished reputation.

1) Notice fails to assess evidence of “sustained national or international acclaim”

Our attorney letter submitted with the last petition summarized the record of the

beneficiary’s sustained accomplishments in dance performance, choreography and competition as follows:

The most stringent measure of O-1 "Extraordinary ability" is a level of expertise indicating that the individual is one of a small percentage that has risen to the very top of his field of endeavor. Mr. _________ clearly exceeds the O-1B standard for artists, “distinction.” He has achieved sustained national and international acclaim, renown and recognition above that ordinarily encountered as evidenced by the following: EXHIBIT 1: NATIONAL AND INTERNATIONAL AWARDS FOR EXCELLENCE IN BALLROOM DANCING 1994 (Ukraine) 5th Place Latin American Program, Minsk, Ukraine 1995 (Ukraine) 2nd Place Latin American Program, Zaporogye, Ukraine 1996 (Romania) 2nd Place Latin American Program in Romania 1997 (Ukraine) 2nd Place European Program Crimean Federation of Sport Dance, Sim- pheropol, Ukraine

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1998 (Ukraine) 1st Place in EVITA Dance Tournament, Odessa, Ukraine 1st Place "Cup of Odessa 98", Odessa, Ukraine 1999 (Moldova & Bulgaria) 2nd Place National Championship of Republic of Moldova, Latin American Program, Chisinau, Moldova 1st Place Bulgarian Federation of Sport Dances, Republican Championship of Sport Dances, Latin American Program 2000 (Russia & Ukraine) 1st Place in interclub competition in Slavyanske, Russia 1st Place in Latin in Skadovsk, Ukraine 2001 (Ukraine) 3rd Place International Federation of Sport Dances, Ukrainian Association of Sport Dances, International DanceSport Federation Standard and Latin, Chernivchi, Ukraine Diplomas as Ballet Master, Stage Manager of Ballet Choreography at The Ill All-Ukrainian Choreographical Festival Contest 2002 (Ukraine) 1st Place in Latin at Classic and Rating Ballroom Dance Competition in Kyiv, Ukraine 2003 (Ukraine) 1st Place in Youth and Adults C in Odessa, Ukraine 1st Place in Kaleidoscope 2003 in Kyiv, Ukraine 2004 (Ukraine) 1st Place Stage in Ball Choreography, Chkalovski, Ukraine 2005 (Ukraine) 1st Place Category Youth B Standard in Kyiv, Ukraine 2006 (Ukraine) 1st Place Adults B in All Ukrainian Festival of Ballroom Dance, Kyiv, Ukraine 1st Place Cup of Coach 2006, Kyiv, Ukraine 2007 (Russia) 1st Place in ten-dance contest, Honorary Diploma at International Ballroom Dance Performers Contest, Apatity, Russia 2008 (Ukraine) Bachelor's Degree in Choreography from Kiev National University of Culture and Arts (Transcripts included); __________ Advanced Bronze Certification in American Style Ballroom Dance 2009 (U.S.) South Central Region _______ Award __________ Silver Certification Final Level in Smooth & Rhythm Ball- room Dance __________ Silver Certification Intermediate Level in Smooth & Rhythm 2009 __________ Gold Award

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2010 (U.S.) __________ Platinum Award 2012 (U.S.)

• ____ Social Bronze Professional Certification Intermediate level with Honors • ____ Social Bronze Professional Certification Intermediate level with Honors • Freddy Award for a Top Performer in a Specialist Department

2013 (U.S.)

• Freddy Award for Outstanding Performer in Specialist Department • Choreographer and Lead Dancer on “ Broadway Bound” Showcase, performed in

New York City, February 2013 • Freddy Award for Top Male Originals Sold • International Bronze Latin Professional Certification with Honors • International Bronze Standard Professional Certification with Honors • 2nd place in American Smooth Championship, Atlantic City March • Top showcase, Summer Classic Competition in June

2014 (U.S.)

• Freddy award for Top Male Performer in Advanced Department (given to top 5%

of ____ performers) • Choreographer and leading dancer on “Glee” Showcase performed in New York

City, February 2014 • FADDS Top Studio 6th Place Award for the year 2014 • 2nd place in Open Smooth Championships, Summer Classic Competition, June

2014 • 3rd in American Rhythm Championships, Summer Classic Competition June 2014 • 1st in Showcase division, Summer Classic Competition June 2014 • 1st place in American Smooth Championship, NY/NJ Challenge, August 2014 • 3rd place in American Smooth Scholarship, NY/NJ Challenge, August 2014 • 3rd place in Open American Smooth division, North East Dance Sport

Championships, November 2014 • 3rd in Silver American Smooth Championships, North East Dance Sport

Championships, November 2014 • 4th Place _______ Top Studio Award ,North East Dance Sport Championships

November 2014

2015 (U.S.)

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• Lead dancer and assistant choreographer on “New York Stories” Showcase performed in New York Live Arts Theater in New York City, on February 28th , 2015 http://www.newyorklivearts.org/event/____________ (About New York Live Arts theater http://www.newyorklivearts.org/about/about.php )

• Top Showcase Award, Metropolitan Dance Sport Championship, March 2015

2) Notice concludes, incorrectly, that success in national and international Dance Sport competition does not establish a “lead role” in organizations “of distinguished reputation”

Ample documentation was provided of the beneficiary’s top placings in numerous prestigious national and international competitions. However, the Notice states this cannot satisfy the criterion for establishing the beneficiary “performed services in a lead, starring, or critical role for organizations and establishments with distinguished reputations.” The Notice does not explain why a long record of wins and high placings in national and international events do not satisfy the requirement the beneficiary had a “lead, starring, or critical role” in these competitions. The notice does not explain at this point why the evidence and testimonials submitted do not prove that these competitions and their sanctioning bodies qualify as “organizations that have distinguished reputations.” The notice simply concludes that the “evidence submitted is insufficient.”

Note: The Notice, as reproduced below, nonetheless acknowledges for this criterion that the petitioner is an organization of distinguished reputation:

[8CFR §214.2(o)(3)(iv)(B)(iii)].

(iii) Lead, Starring, or Critical Role You may submit evidence showing the beneficiary has performed in the past, and will perform in the future, for organizations and establishments that have distinguished reputations. For this criterion, you must also show that the beneficiary has played, and will play, a lead, starring, or critical role for those organizations and establishments. The evidence you submitted is insufficient. The evidence indicates the beneficiary has performed as a dancer in numerous competitions; however, there is insufficient evidence provided to establish that beneficiary performed services in a lead, starring, or critical role for organizations and establishments with distinguished reputations. Furthermore, to satisfy this criterion, you must also establish that the beneficiary will perform, in the future, as a lead, starring, or critical role for organizations and establishments that have distinguished reputations. As stated in the first criterion, your dance studio

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actively recruits leading professional ballroom instructors from around the world. As such, you have sufficiently established the beneficiary will be working in a lead, starring, or critical capacity for your organization. [emphasis added] Evidence may include, but is not limited to: Newspaper articles or other published materials about the beneficiary and the organizations and establishments where he or she has performed and will perform; Trade journals; Publications; and Testimonials. Note: Letters and testimonials should provide as much detail as possible about the beneficiary's achievements in the field and give the credentials of the author, including the basis of his or her knowledge of the beneficiary's role.

By omitting reference to the testimonials and other evidence establishing the

beneficiary’s many competition successes both internationally and in the United States, as itemized, the Notice again manages to both ignore the bulk of the evidentiary record and misapplies the regulation. This is a recurrent serious error in the notice. The regulation actually states: [8CFR §214.2(o)(3)(iv)(B)(iii)]

Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.

Testimonials included but not considered and discussed in this Notice are as

follows: ________, ________. We herewith provide new additional evidence that bears on the beneficiary’s international competition successes and the standards of competition and judging applied. See expert letter of _______, attached at Ex. _____. The probative value of evidence going toward these factors has not been discussed in the Notice.

The Notice simply concludes here and at other criteria, “The evidence you

submitted is insufficient.” Subjective insufficiency in this context is not the same thing as an objective assessment that such evidence is altogether missing, absent, or not present on the record that might form the basis for revocation. The author of the Notice is making a subjective judgment here. It is apparent from that language and similar subjective judgments throughout the rest of the Notice that the author has approached the NOIR using the O-1B template and evidentiary standards derived from the RFE template. However, this RFE approach is being applied here to an approved visa petition. The regulations state that revocation with notice can only be for cause, not “inadequate evidence.” As discussed above, cause for revocation of an approved petition is confined to the following causes:

[214.2(o)(8)(iii)(A)]

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(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition; (2) The statement of facts contained in the petition was not true and correct; (3) The petitioner violated the terms or conditions of the approved petition; (4) The petitioner violated the requirements of section 101(a)(15)(O) of the Act or paragraph (o) of this section; or (5) The approval of the petition violated paragraph (o) of this section or involved gross error. The Notice fails to articulate good cause, consistent with 214.2(o)(8)(iii)(A) why

revocation for the eligibility factors is warranted or consistent with this regulation. The notice fails to identify which specific cause(s) for revocation might apply. The Notice fails to explain the factors that led the Service to revoke this petition and how either material change or “gross error” might apply.

A fair and impartial review of the record instead shows that there are no valid

grounds for revocation consistent with214.2(o)(8)(iii)(A) . The overwhelming weight of evidence establishes the beneficiary has achieved sustained renown as a competitive international dancer, the beneficiary continues to work for the petitioner in the same capacity without material change, and O-1B status has been properly extended.

3) Notice is internally inconsistent with regards to two eligibility criteria applied to the Three-of-Six eligibility rule.

This notice shows yet another defect – it directly contradicts itself in its findings that the petitioner is both an organization of distinguished reputation (as found at Criterion iii) but with regards to Criterion (i), below, it concludes to the contrary “you have not established that the beneficiary's participation will be leading or starring, or that the productions or events have distinguished reputations.” That unexplained inconsistency is apparent in the finding below with regard to criterion (i):

Furthermore, to satisfy this criterion, you must also establish that the beneficiary will perform, in the future, as a lead or starring participant for productions or events with a distinguished reputation. While the submitted evidence indicates the proposed championships and competitions the beneficiary will be performing in, you have not explained how or why the beneficiary's role will be lead or starring, or that the productions or events have distinguished reputations. It is also noted, that your dance studio "is a team of distinguished dance experts who are available to train, examine and certify all staff to ensure that the studios are staffed with the finest professional teaching staff available in the world. This board ensures that only the best professional dancers represent the studio." As such, you have not established that the beneficiary's participation will be leading or starring.

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Evidence may include, but is not limited to: Written reviews from critics; Advertisements or publicity releases; Publications; Contracts; Endorsements; Materials from trade journals; and Magazine articles.

In fact, evidence was submitted with this extension petition to document the new leading and critical role of the beneficiary with demonstration that ________ and ____ dance events have a distinguished reputation. In fact, the Notice seems to fully accept that the beneficiary has assumed a “leading or critical role” in its conclusion that the beneficiary has taken on managerial duties, while it assumes incorrectly that the primary duties are now managerial. That evidence of leading and critical role took the form of the following, including testimonials:

________, _________, ________ Nonetheless, the author of this Notice does not appear to have read the evidence

submitted before issuing the revocation. In addition, the Notice again mischaracterizes the range of allowable evidence that demonstrates the distinguished reputation of ________ and the notice again omits reference to the content of testimonials. The Notice reflects no consideration of this evidence. A testimonial was, in fact, submitted to document distinguished reputation, states as follows:

____________ states _______

Finally, while it was found with regards to Criterion (iii) that ________ of the ____

system is an organization of distinguished reputation, at Criteria (i) the Notice concludes that has not been established. The Notice is thus internally inconsistent with regard to these two eligibility criteria gin to the Three-of-Six rule. It is also internally inconsistent with regard to its errant conclusion that the position is now managing the studio, which would imply a leading or critical role, while it also denies at criteria (i), (iii) that the beneficiary plays that role. Criterion (v) – Significant Recognition

As is apparent, the reasoning and methodology of this Notice are defective. Nowhere does the subjective judgment seem weaker than in the finding made that the evidence related to Criterion (v), Significant Recognition for Achievements is “insufficient.” The Notice shows a fundamental misunderstanding of the factors that indicate recognition in the field of ballroom dancing and Dance Sport competition.

The Notice apparently assumes that success on a high level in international

dance competition is inadequate preparation to teach ballroom dance when it states:

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there is insufficient evidence provided to substantiate how the evidence provided to substantiate how the beneficiary has the recognition required as a dance instructor. The author of this notice seems to also be unaware of or ignore the evidence on

the record that the beneficiary has, in fact, been a dance instructor with awards for that role since he was first approved for an O-1B status going back to 2008. [See, Attorney Letter, and referenced exhibits at ____, _____.

In addition, the testimonials and related evidence of recognition seem to have

been rejected out of hand, and the Notice thus erroneously concludes, “although the authors state their credential, these statements, alone, are insufficient to establish they are recognized experts in the field of endeavor. The Notice states with regard to Criterion (v):

V. Significant Recognition You may submit evidence showing the beneficiary received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field of endeavor. The evidence you submitted is insufficient. You submitted testimonial letters from others associated with the ballroom dance industry. The authors recognize the beneficiary as a talented dancer who is highly trained. The authors recommend the beneficiary for the proposed position as the beneficiary would be an asset to the dance industry in the United States. However, even though they promote the beneficiary's recognition as a dancer in the realm of professional ballroom dancing, there is insufficient evidence provided to substantiate how the evidence provided to substantiate how the beneficiary has the recognition required as a dance instructor. Furthermore, although the authors state their credential, these statements, alone, are insufficient to establish they are recognized experts in the field of endeavor. You may still submit evidence to satisfy this criterion. Evidence may include, but is not limited to, testimonials from experts in the field which clearly indicate the author's authority, expertise, and knowledge of the beneficiary's achievements. Note: Letters and testimonials should provide as much detail as possible about the beneficiary's achievements in the field and give the credentials of the author, including the basis of his or her knowledge of the beneficiary's role. It is difficult to see how the author of the Notice could come to such a finding,

given that the testimonials included letters from (name, describe titles or roles) __________, ________, ___________________. Clearly, all of these are experts are authorities on dance and dance instruction.

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On this point, particularly, we see this decision to revoke is arbitrary and capricious and this Notice does not conform with the record and regulations. This illustrates why Service policy is not to generally base revocation in such subjective matters.

(vi) High Earnings or Remuneration or Other Substantial Rumeration for Services Relative to Others

Finally, we come to the last Three-of-Six criteria we will discuss in our response. This is perhaps the easiest to respond to. The Notice assumes “the beneficiary's primary responsibility will not be as a dancer, but as a dance instructor and manager.” As has been shown above, however, that assumption is simply false and unfounded. The primary duties of this position continue to be primarily as a dancer, not a manager. [See Sec. ___, in this response above] Contrary to the assumption expressed by the Notice, there is no separate occupational O*Net or BLS category for “dance instructor.” It is therefore normal in this type of O-1B petitions for wages for dance instructors to be based in the data for dancers, as BLS national wage data is the only source that is certain to be accepted by USCIS. Your Notice states:

Remuneration You may submit evidence showing the beneficiary has commanded, now commands, or will command a high salary or other substantial remuneration. The evidence you submitted is insufficient. You indicate that the beneficiary will earn $85,000 annually. This amount is considered a "high salary" as a dancer according to the Foreign Labor Certification Online Wage Library you submitted. However, it appears that the beneficiary's primary responsibility will not be as a dancer, but as a dance instructor and manager. Therefore, USCIS cannot conclude the beneficiary sufficiently meets this criterion. You may still submit evidence to satisfy this criterion.

RESPONSE TO NOIR ISSUE (Alternative Criterion vi)

The beneficiary does not base his claim in this seventh alternative criterion.

II Comparable Evidence

If the preceding achievement criteria do not read ily apply to the beneficiary's occupation. you may submit comparable evidence to establish the beneficiary's eligibility. You should indicate why the criteria do not apply to the occupation. If submitting comparable evidence, you should: Explain how the regulatory criteria is not applicable to the beneficiary' s occupation; and • Explain why the evidence you submitted is "comparable" to the applicable regulatory

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requirement.

CONCLUSION Based on the enclosed documentation, Mr. _________ has met more than three of the criteria under 8 CFR §214.2(o)(3)(iv) to be classified as an Alien of Extraordinary Ability in the O-1B category. The evidence submitted with the initial petition along with this NOIR response, show the petition was properly approved. The record clearly shows the beneficiary has a sustained record of acclaim in dance, choreography and his dance related duties. The Service has stipulated that the position offered is with a prestigious organization and the beneficiary’s ongoing role is clearly leading and critical. There was no gross error identified in petition extension. The Notice articulates no material unexplained change. There is no question of violation. Finally, the factors raised in the Notice are either immaterial or subjective in nature. At this time, we respectfully request that the approved Form I-129 petition filed on his behalf be sustained, and this Notice withdrawn. If you have any questions, please do not hesitate to contact me. Sincerely, ________________, Esq. Attorney NY State Bar Association No. _______ Enclosures FEDEX