AAO October 8, 2014

Case Information

USCIS Administrative Appeals Office (AAO)
Date: October 8, 2014
Office: Vermont Service Center
Type: Non-Precedent
Petitioner: O2 Visa
Profession: Assistant Horse Trainer
Agent: No
Citation: AAO Oct082014_01D8101

Discussion

The Acting Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the appeal. The petitioner filed the nonimmigrant petition seeking to classify the beneficiary under section 101(a)(15)(O)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(O)(ii), as an accompanying alien to XXXXXX an assistant horse trainer.

The acting director denied the petition on March 6, 2014, based on the fact that the 0-1 petition filed on behalf of Mr. XXXXXX was denied. The petitioner subsequently appealed both denials. We dismissed the petitioner's appeal of the 0-1 petition denial.

Section 101(a)(15)(O)(ii) of the Act provides classification to a qualified alien who:

(I) seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by an alien who is admitted under clause (i) for a specific event or events;
(II) is an integral part of such actual performance,
(III) (a) has critical skills and experience with such alien which are not of a general nature and which cannot be performed by other individuals ....
(IV) has a foreign residence which the alien has no intention of abandoning.

The regulations at 8 C.F.R. § 214.2(o)(4) provide the following requirements for an 0-2 accompanying alien:

(i) General. An 0-2 accompanying alien provides essential support to an 0-1 artist or athlete. Such aliens may not accompany 0-1 aliens in the fields of science, business or education. Although the 0-2 alien must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the 0-1 alien to whom he or she provides support. An 0-2 alien must be petitioned for in conjunction with the services of the 0-1 alien.
(ii) Evidentiary criteria for qualifying as an 0-2 accompanying alien -
(A) Alien accompanying an 0-1 artist or athlete of extraordinary ability. To qualify as an 0-2 accompanying alien, the alien must be coming to the United States to assist in the performance of the 0-1 alien, be an integral part of the actual performance, and have critical skills and experience with the 0-1 alien which are not of a general nature and which are not possessed by a U.S. worker.
(C) The evidence shall establish the current essentiality, critical skills, and experience of the 0-2 alien with the 0-1 alien and that the alien has substantial experience performing the critical skills and essential support services for the 0-1 alien.

Upon review, we will dismiss the appeal. Pursuant to section 101(a)(15)(O)(ii)(I) of the Act, an 0-2 alien may enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance of an 0-1 alien. An 0-2 alien must be petitioned for in conjunction with the services of an 0-1 alien. 8 C.F.R. § 214.2(o)(4)(i).

Here, while the petitioner petitioned for the beneficiary's services as an 0-2 accompanying alien in conjunction with the services of an 0-1 alien, the director denied the 0-1 petition, and we dismissed the petitioner' appeal. The status of an 0-2 alien is contingent upon the status of the 0-1 alien. As there is no 0-1 alien for the beneficiary to support, the statute and regulations prohibit the approval of this petition.

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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

The appeal is dismissed.

AAO Oct082014_01D8101