1. ORIGINAL FORM I-290B
MOTION TO REOPEN AND RECONSIDER FORM I-129
O-1B ALIEN OF EXTRAORDINARY ABILITY IN THE ARTS
February 16, 2016
USCIS
Attn: 290B
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034
RE: Denial of Nonimmigrant Petitions for Alien Worker (Form
I-129) Alien of Extraordinary Ability in the Arts (Ballroom
Dancer)
Petitioner: XXXXXXXXX, LLC (DBA, XXXX XXXXXXX Dance Studio)
Beneficiary: Mr. XXXXXX [EAC XXXXX2302]
Dear Director Zhuchowsky:
With respect to the above-referenced case, a petition was submitted for Mr.
XXXXXXXX applying for O-1B status as an Alien of Extraordinary Ability in the Arts
under 8 CFR §214.2(o)(3)(iv). Following reconsideration sua sponte of the initial
decision, the Service Center issued a second denial dated January 15, 2016.
Pursuant to Section 103.5 of the Code of Federal Regulations (CFR), we hereby
submit a brief in support of client petitioner’s Form I-290B with a Motion to Reopen
and Reconsider this matter. [8 CFR § 103.5(a)(2), 8 CFR § 103.5(a)(3)] This is the
first Motion filed in this matter.
Issues
Our response to your decision will generally follow the order of issues as they
are raised in the decision.
ISSUE 1: EVIDENCE -The Position Offered the Beneficiary is Primarily Artistic in
Nature
The first primary threshold issue raised in the decision is the Service Center’s
suggestion or implication that the position offered the beneficiary is primarily athletic
rather than artistic in nature. The RFE did not weigh the evidence of the beneficiary’s

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sustained acclaim and national and international accomplishments in dance
competition on the stated grounds that such activities are not “artistic.” The first denial
was summary on those grounds and did not reference a weighing of the totality of the
evidence, and was withdrawn. The second decision employed substantially the same
reasoning, and sustained the denial. While there appears to have been shift in USCIS
policy on this subject since the first decision was issued and withdrawn, the same
errors in consideration of evidence and legal reasoning underlie both denials.
Therefore, we respectfully request that this decision now be reconsidered, withdrawn,
and the petition approved.
In addition, as will be discussed at length below at page 2 , there are broader
public policy reasons for reversing the newly adopted Service policy of denial of O-1B
dance coach-athlete cases.
The second decision of January 15, 2016 concludes in error from the Itinerary
submitted with the initial petition and RFE response that the beneficiary will be
performing primarily as a competitor and a coach of competition dancers [Dec. p. 4].
The decision cites the itinerary, in part, for the denial despite the fact that the itinerary
was amended and a more complete itinerary was submitted with the RFE response.
Thus, it was concluded this is not a position that should be accorded O-1B
classification for Extraordinary Ability in Arts under 8 CFR §214.2(o)(3)(iv) and the
definition of Arts at 8 C.F.R. 214.2(o)(3)(ii).
As we will show, below, that premise is not supported by the preponderance of
the evidence, and in effect, the second decision is no better supported by the record
than the first. The evidence was mischaracterized, and much evidence has again
been ignored, and thus any weighing of the evidence is defective and does not reflect
the totality of the evidence. Nothing of substance has changed from the first to the
second decision, and the process of adjudication remains inconsistent with regulatory
requirements. The petitioner has again been denied the administrative process due
under law and regulation.
We stipulate that the beneficiary has a distinguished record spanning nearly
twenty years as a champion dance competitor abroad and additionally is a coach of
students who, themselves, have achieved success. This meets the standard laid down
by the Administrative Appeals Office (AAO) issue on October 14, 2014 enclosed herein
as Exhibit 3, for approval under the “balancing test” that appears to inform current
Service policy for cases where the O-1B claim is in part based in sustained acclaim as
a dance competitor and in part as a coach. The second decision issued by the Service
Center on January 15, 2015 states and aligns itself with this standard based in a
preponderance of the evidence by the following stipulation: [Ex. 2 p. 5]
Dancing and instructing are not considered to require the same area of expertise. USCIS
cannot assume that an alien with extraordinary ability as a dancer has the same level of
expertise as an instructor. However, given the nexus between athletic dance competition
and instructing, in a case where an alien has clearly achieved national or
international acclaim as a dancer, and has sustained that acclaim in the field of
instructing at a national or international level, USCIS may consider the totality of
the evidence in establishing an overall pattern of sustained acclaim and

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extraordinary ability. Accordingly, USCIS will address the evidence regarding the
beneficiary's accomplishments as both a dancer and a Choreographer (Instructor).
ISSUE 2: PROCEDURE – Issue of the Beneficiary’s Competition Successes in
Major National Events raised at the Decision Stage. Violation of Regulation:
Petitioner Must be Informed of Issues in the RFE and Given the Opportunity to
Respond. [8 C.F.R. § 103.2(b)(8)(iv)], Violation of Administrative Procedure Act,
§§ 704, 706.
A second, related reason this decision should be reconsidered and withdrawn is
the fact that the denial is based in doubts newly raised at the decision stage of the
adjudications process about the significance of the beneficiary’s competition record.
The initial petition filing showed the beneficiary was a multi-time winner of competition
events from 1996-2006 in events Open to all Russian competitors sanctioned by the
Moscow Dance Sport Federation and the International Dance Union (IDU), and high
placings in all-Russia competition that qualified him and his partner to represent that
country at the World Dance Council (WDC) global championship event in 2005.
However, that evidence was altogether ignored until the second decision. This is a
direct procedural violation of regulation and is contrary to stated Service policy. See, 8
C.F.R. § 103.2(b)(8)(iv); related, USCIS Policy Memo, PM-602-0085, (June 3,
2015), Section B. In addition, this irregularity and failure to notify an affected
party is a litigable violation of the Administrative Procedure Act (APA), §§ 704,
706.
While the examiner had an opportunity to raise this specific question in the RFE
issued, this issue was not previously expressed by USCIS until the January 15
decision. This is not a newly emergent issue, but it instead involves evidence that has
been on the record since the initial petition filing on June 3, 2015. Nonetheless, that
decision suggests that the petitioner and counsel should have intuited that this
previously unexpressed issue might be raised, and states, parenthetically:
Additionally, if the referenced competitive events are major,--nationally or internationally-
recognized events as claimed, it is reasonable for the petitioner to provide additional
evidence that the listed events are significant achievements.
While we are now submitting a response to that point as supplemental evidence
with this Motion to Reopen and Reconsider, the regulations and Service policy state
that the petitioner must be accorded the opportunity to be advised of eligibility issues,
and these should be raised with the RFE. See, 8 C.F.R. § 103.2(b)(8)(iv); related,
USCIS Policy Memo, PM-602-0085, (June 3, 2015), Section B.
In fact, the significance of the events as major nationally or internationally
recognized events was confirmed and is on the record. It is not reasonable to
expect the petitioner to provide additional evidence when it was not requested in
the RFE. The RFE treated the evidence of acclaim in Dancesport as irrelevant if

4. 4
not prejudicial, and did not make any reasoned consideration of the evidence
submitted. That issue, which is significant to the outcome, has not been
considered at all until the second decision. This petition should now be
approved or another RFE issued on this issue. The matter cannot be denied at
this stage with such a major procedural defect on the record. Please be advised
that this irregularity and failure to notify an affected party is a litigable violation
of the APA, §§ 704, 706.
In the alternative, the Service Center Director may approve this petition at
this stage, even if there are still some remaining doubts. See, Matter of
Chawathe, 25 I&N Dec. 369 (AAO 2010); [Even if the director has some doubt as to
the truth, if the petitioner submits relevant, probative, and credible evidence that leads
the director to believe that the claim is “more likely than not” or “probably” true, the
applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80
(Comm’r 1989), followed]
The evidence on the record shows the beneficiary has high finishes in 64
events, winning more than 30 First-place awards in dance. [See RFE Response dated
October 30, 2015, Exhibit 8] The XXXXXXXX letter submitted in the same RFE
response specified that the seven events certified were in sanctioned, open adult
dance competition judged to prevailing international standards. [See RFE Response,
Exhibit 14] That evidence, in aggregate, meets the normal prevailing USCIS standards
for evidence of “major nationally or internationally recognized events.”
Nonetheless, doubts about the beneficiary’s record of acclaim and recognition
as a champion Dance competitor are raised for the first time in the denial, as follows:
[T]he listed events are amateur events. The record does not support the letter that the
dance events are widely known events . . .
Furthermore, the Decision operates on an erroneous premise regarding
amateur versus professional competition, and the distinction drawn between
“amateur” and “widely known” does not reflect the way dance competition is
actually structured. In Eastern Europe the highest level of competition is amateur.
Professionals are generally older, retired amateurs. We hereby take this opportunity to
submit new evidence to establish that for the record, and ask that this decision be set
aside upon reconsideration of the facts. [Ex. 12]
The Semanova letter, when connected with new evidence enclosed herein as
Exhibits 7 through 12, also speaks to the Amateur v. Professional Issue, and the
distinguished reputation of the various dance events discussed above. From the
Semanova letter, one can see that most competitions certified are hosted by the
Moscow Dancesport Federation, and that these are “Open” competitions, which
means that any competitor who is a member of the Russian Dance Sport Federation
could compete. Moscow is the center and largest of the all-Russian dance Federation.
This organization is also the Moscow chapter of the Russian Union of Dance Sport.

5. 5
As documentation of the foregoing please find enclosed Exhibit 7, the full list of
Russian Union of Dance Sport members, followed by Exhibit 8, containing the
membership page for “77. Moscow” also known as “The Moscow Dancesport
Federation.” [Ex. 7-8] As Moscow is the center and largest of the all-Russian Union of
Dance Sport chapters, these events are the most competitive and attract the best
dancers within the RUDS. The awards conveyed by the Moscow Dancesport
Federation are nationally recognized within the RUDS. [Ex. 7-9] This is of
paramount significance due to the fact that, as documented in Exhibit 9, the Russian
Union of DanceSport is the recognized World Dancesport Federation member for the
entire Russian Federation. [Ex. 9] The Russian Union of DanceSport is again
confirmed as a full member on the official World Dancesport Federation website of
www.WorldDanceSport.org, where the website lists all full members enclosed herein as
Exhibit 10, where the distinguished reputation of the WDSF is also documented.
The World DanceSport Federation, as documented in Exhibit 10, is the
recognized global authority and governing body of dancesport. This is also stated in the
WDSF competition rules preamble attached herein at Exhibit 11 page 5, clearly states,
“The WDSF Competition Rules apply to DanceSport governed by the World DanceSport
Federation and all of its Members.” [Emphasis added] Therefore all competition
results achieved by Mr. XXXXXXXX in WDSF member competitions were held to the
highest standards of global dance sport possible. The standards for adjudication can
also be found in Exhibit 11. This level of scrutiny extends to all results from the
referenced XXXXXXXX XXXXXXXX letter, submitted as Exhibit 14 in the RFE response
dated October 30, 2015, and all other results submitted as part of the RFE response.
WDSF rules also provide clarification distinction between Amateur and Professional
dancers, enclosed herein as Exhibit 12 is a WDSF webpage documenting that
“amateur” WDSF sanctioned competition is the highest level of competition, and that
professionals are merely retired amateurs:
Every dancer turning professional looks back at a successful career as an “amateur”.
And the quotation marks are perfectly in order: such status does no longer exist! The
new professional will have won purses in competition – and received remuneration for
lessons and shows – much prior to his or her change of status.
These multiple errors in procedure and fact that went into the denial of the
petition go to sustained acclaim, leading role, distinguished reputation, recognition, all
factors that impact eligibility Criteria 1,2,3,4 and 5, so these are not merely harmless
errors. Furthermore, the issue of amateur vs. professional, and its underlying [faulty]
assumption that the latter is in some way superior to the former, was not raised in the
RFE. Thus, the petitioner was not given an opportunity to address this issue prior to
the decision as required by the regulations. The decision should for this additional
reason be reconsidered and the denial withdrawn.
It is therefore apparent that the information in Chairman XXXXXXXX’s
testimonial that confirmed the significance of these events were ignored or dismissed
without justification or explanation.

6. 6
ISSUE 3: EVIDENCE – Key Evidence on the Record is Misconstrued and
Misrepresented
The decision at this point references an important piece of evidence, the
XXXXXXXX testimonial, but it is cherry picked in order to diminish its significance to
such an extent that the most relevant information is stripped out, and the reader is left
with the impression that these are not major competitions. The examiner who
authored the denial writes:
XXXXXXXX XXXXXXXX, a Russian ballroom dance teacher and World Dance Council
(WDC) judge of All-Russian category, hat states, "These achievements are widely
acknowledged, and they constitute achievements of Alexander XXXXXXXX in the dance
sports. [sic] However, you provided the beneficiary's resume which indicates the listed
events are amateur events. The record does not support the letter that the dance events
are widely known events.
The true and complete picture is revealed by the following extract from
Chairman XXXXXXXX’s testimonial, which may not have been read in full, the author
being of unquestioned competence and integrity to provide evidence on this issue:
My name is XXXXXXXX XXXXXXXX. I am a Russian ballroom dance teacher, WDC
judge of All-Russian category. I am a member of the presidium and a chairman of
qualifying commission on professional teaching and social activities of the Interregional
social organization of the Moscow DanceSports Federation (russianmaster.ru) of the
Russian Dance Union. I direct the Waltz dance sports club, where A. XXXXXXXX
studies since he was a schoolboy until he left for America, in the same group with
Katusha Demidova, the champion of America and multiple world champion among
professionals.
I confirm that Alexander XXXXXXXX participated in prestigious national ballroom dance
competitions in Russia, in Moscow. The most prestigious Alexander’s titles, awards and
achievements include the following:
 Ballroom dance competition, Moscow, Russia. November 21, 1999. Moscow
DanceSports Federation, C-class adults’ category. Standard. First place out of 17
couples.
 Ballroom dance competition, Moscow, Russia. February 21, 2000. Moscow
DanceSports Federation, C-class adults’ category. Standard. First place out of 24
couples.
 Ballroom dance competition, Moscow, Russia. January 27, 2002. Moscow
DanceSports Federation, Open-class adults’ category. Standard. First place out
of 43 couples.
 Ballroom dance competition, Moscow, Russia. February 23,2002. Moscow
DanceSports Federation, Open-class adults’ category. Standard. Second place
out of 21 couples.
 Ballroom dance competition, qualification for the First World IDU
championship, Moscow, Russia. November 13, 2005 . Moscow DanceSports

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Federation, Open adults’ category. Standard. Fourth place out of 11 couples. The
first five couples were qualified for the World Championship.
 Ballroom dance competition, Moscow, Russia. March 12, 2006. Moscow
DanceSports Federation, B-class adults’ category. Standard. Third place out of
36 couples.
This is to confirm that the above competitions are the nationally authorized
competitions. They are open for competitors from all over the country. These
competitions attract the best local and foreign competitors, while the judges’
activities met the high international standards. [emphasis added]
These achievements are widely acknowledged, and they constitute outstanding
achievements of Alexander XXXXXXXX in the dance sports. High results in the dance
sports competitions are considered in our domain of culture and sports as a stable
indicator of extraordinary abilities of ballroom instructor andchoreographer.
I confirm authenticity and accuracy of the Alexander XXXXXXXX’s above results and
achievements, and I confirm the national value of the awards he has earned. I am also
sure in his outstanding career as a dancer and teacher in honorable dance
organizations.
ISSUE 4: EVIDENCE AND PROCESS - The Decision Is Not Based in the Record,
Eligibility Standards Stated and Applied are Ambiguous, Shifting, and
Inconsistent.
It is established by uncontested evidence on the record – the Supplemental
Summary of terms submitted with the first RFE Response, attached herein as [Ex. 13] --
that the position primarily involves dance instruction and choreography and that Mr.
XXXXXXXX’s competition activities will be limited. This document is followed by the
Rider to Employment Agreement which further states out of (252 days a year) of work,
competition activities of the beneficiary will amount to less than 15 percent of his time
(31 days a year). We have also resubmitted the Rider to the Summary of Terms
enclosed herein as Exhibit 14.
This is also consistent with the original Itinerary that showed the beneficiary
would, himself, perform in some weekend events, including completion sanctioned by
the National Dance Council of America. The Rider also provides detailed information
that shows the position offered by the petitioner is essentially an advanced level dance
coach five days a week, with some involvement of the petitioner assisting students at
weekend competition at XXXX events, but the position is clearly not primarily that of a
professional dance competitor or a coach of professional dancers.
Somehow, these weekend activities, amounting to no more than 15 percent of the
beneficiary’s time, become, in the words of the decision, “a weekly schedule of dance
competitions sponsored by the National Dance Council of America.” The decision
further misrepresents the record as follows: [pp. 6-7]

8. 8
Counsel further indicates that the competitions in which the beneficiary will participate are
incidental to his duties as a coach and instructor. However, the itinerary submitted as part
of the initial evidence shows a weekly schedule of dance competitions sponsored by
the National Dance Council of America.
You also provided an updated itinerary that details the beneficiary will participate at XXXX
competition events, such as the New England DanceSport Championship, the National
Dance Championships and World Championships, and the 50th Colonial Classic-Inter-
Regional Competition. The record did not establish how each individual event is
distinguished. Furthermore, the record does not show the beneficiary will perform in
distinguished artistic productions or events.
Yet, even though the decision acknowledges as fact the beneficiary’s involvement
in what it portrays as high-level NDCA competition, the decision comes around from the
other direction to conclude that:
The record did not establish how each individual event is distinguished.
It is worth repeating here that the RFE did not ask for information about the
distinguished reputation of competition events, but improperly presumed it to be
irrelevant. In trying to cut off eligibility from opposing directions, this decision appears to
undermine its own reasoning. That, in itself, is reason to reconsider and withdraw this
denial.
Lost in this decision is the fact that USCIS has long accepted that NDCA
competition and events, such as the Washington Open, are considered to be
distinguished venues and that top placing has long been accepted as establishing
participation in a lead or starring role in events with a distinguished reputation. [See,
generally, Ex. 23] Somehow the fact that the beneficiary finished First in the 2015
Washington Open Rising Star Smooth category [RFE Response letter, p. 34; also see,
Ex. 15] seems to have fallen out of the decision, altogether. In addition, USCIS has
long held that XXXX XXXXXXX Dance Studios and its program of coaching,
showcases, social dancing and competition have a distinguished reputation. [See, RFE
Response letter, pp. 25-36; also see, generally, Ex. 21]
Now, without notice or explanation—seemingly on the sole basis of a new-found
interpretation that all competition dance is essentially athletic not artistic -- this decision
comes to contrary conclusions. The beneficiary is all at once an athlete who is coming
to the United States “to both compete in athletic events and coach/instruct/train
individuals who will also compete in annually recurring athletic dance competitions”, the
decision states at page 7, yet at the same time, the decision denies the application
because the events in the Itineraries – of a type which were previously accepted on a
routine basis as having a distinguished reputation – are now found to not be
distinguished. This unexplained shift in policy is an example of unusual and irregular
adjudication, and presents an additional reason why this denial should be reconsidered
and withdrawn. The decision cannot have it both ways to the detriment of this
beneficiary and future beneficiaries that may mirror the same fact pattern.

9. 9
This decision is part of a larger shift in Service policy without notice regarding
adjudication of O-1B petitions. It seriously impacts the XXXX studio system which is the
largest private enterprise service provider of dance coaching in the United States and in
the world, today. As will be explained at greater length below, and in the letter from
XXXX National Director of Training and Development Kimberly XXXXXXXX enclosed
herein as Exhibit 16, this decision and a number of other similar cases, has significant
economic impact on the XXXX studio system and a number of small entities and the
livelihoods of studio owners and their employees across the United States. They
wonder what has motivated this unexplained change and unannounced shift of policy,
and offer a number of compelling arguments why XXXX dance coaching is beneficial to
the country and that the O-1B visa category is the necessary and proper vehicle for their
studios’ global recruitment of dance instructors, choreographers, and coaches.
Petitioner also provided specific evidence with the Proposed Itinerary (2015-
2018) submitted as a supplement with the RFE response [Ex. 4] that shows coaching of
students who compete is but a small minority of the beneficiary’s proposed duties.
Instead, it specifies a regular schedule of lessons and choreography of dance
performance five days a week, working with students:
“Sessions shall be used primarily for coaching dancers on presentation, confidence,
animation, technique, and timing. Also sessions shall include designing choreography for
dancers who wish to perform their dance routines at showcases, charitable events,
social events and other dance related events.”
Nonetheless, the decision draws contrary conclusions that 1) “the record shows
the beneficiary will teach students who will then compete at dance competitions for
awards and prizes”; and, 2) “The record does not show the beneficiary will perform
services as a choreographer in distinguished artistic productions or events”. The
decision states: [Dec. 6]
You provided an employment agreement rider that states, "Professional Dance Coach,
Choreographer, and Performer. This includes studio lessons, training students for
competition, accompanying students to competitions, choreography of routines and
performances, performances in non-competition events (i.e. non-judged performances,
exhibitions and showcases) and job related administrative work: 252 days/year." Counsel
contends that the beneficiary will primarily teach dance; however, the record shows the
beneficiary will teach students who will then compete at dance competitions for awards and
prizes. The record does not show the beneficiary will perform services as a choreographer
in distinguished artistic productions or events.
First, it maintains that because the beneficiary has a long background in
competition, and will be competing occasionally on weekends while coaching
amateurs, some of whom compete in XXXX XXXXXXX Dance programs, the position
is imputed to be essentially that of a DanceSport competitor and a coach of “students
who will then compete at dance competitions for awards and prizes” and thus not an

10. 10
O-1B Artist. The conclusion drawn is not based in the evidence and in stated,
consistent traditional Service policy.
Second, the decision does not faithfully weigh the evidence, and instead
substitutes supposition for fact. DanceSport is presumed to be a purely athletic
undertaking and that is taken to preclude a finding that the position, because it involves
some competition, is not artistic in nature. Attendant to this supposition is the
suggestion that DanceSport as practiced in the United States is akin to an Olympic
sport, and that the beneficiary is coaching athletes, which if true, would be more
appropriate to the O-1A category. The latest decision again raises this suggestion or
imputation and goes on in the next paragraph to conclude: [Dec. 6-7]
Counsel contends that the beneficiary will primarily teach dance; however, the record
shows the beneficiary will teach students who will then compete at dance
competitions for awards and prizes.
It is worth noting that the International Olympic Committee (IOC) has formally recognized
DanceSport as a sport under consideration for inclusion in the Olympic Games. Although
DanceSport is not yet a medal sport in the Olympic Games, DanceSport or competitive
Ballroom Dance has evolved into an acknowledged form of athletic competition. You
provided a letter from Ken Richards, DanceSport VP-USA Dance, dated October 30,
2015. The letter states, "DanceSport being recognized as an Olympic Sport occurred in
1997, some 18 years ago. Since then, DanceSport has not been allowed, by IOC
standards, to escalate further to a level required to be a full Medal Spot (sic)." USCIS
acknowledges that DanceSport is not yet a medal sport in the Olympic Games.
However, a review of publicly available open source information, specifically
usadance.org, shows the organization recognizes competitive dancers as athletes.
The record establishes that DanceSport is a sport in which athletes compete for
prizes and awards. Additionally, the record establishes the beneficiary will be coming to
the United States to both compete in athletic events and coach/instruct/train individuals
who will also compete in annually recurring athletic dance competitions. As such, the
record does not establish the beneficiary will be coming to the United States to
participate in the field of arts. [Emphasis added]
At this juncture, we must point out yet another serious procedural issue
raised by this decision which is based in evidence that was obtained off the
record, and not raised previously by the RFE. The decision states:
[A] review of publicly available open source information, specifically usadance.org,
shows the organization recognizes competitive dancers as athletes.
However, like several other newly raised issues, this evidence is newly
introduced at the decision stage. By reaching off the record to support her
denial, the Service Center Director has gone outside proper legal and
administrative procedure. This might have been acceptable practice had the
petitioner been given the opportunity to respond prior to decision, however that
opportunity was not accorded as required by law, regulation, and authoritative

11. 11
Service policy statement. This is a key another reason why this decision should
be reconsidered and withdrawn.
In fact, the vast majority of XXXX studio’s students are not Olympic competitors or
even serious athletes – the XXXX system of competition at its lower and intermediate
levels in which most students participate are recreational – thus, the suggestion that
the beneficiary is primarily coaching athletes is false. That is an error in reasoning akin
to the suggestion that become some Kindergarten students eventually become Rhodes
Scholars, that all Kindergartners are scholars. The highest level of XXXX competition,
Open events, however, attract world-standard competitors, which raises the overall
level of dance at these events to the benefit of XXXX XXXXXXX Dance Studios and
dance, generally, in the United States.
In addition, as the evidence actually shows, the primary duties of Mr.
XXXXXXXX are dance instruction and that he assists students on some
weekends at XXXX events as a coach. The lower and middle rungs of XXXX
competition in which all but a very few compete is not national or international
level competition. Only the Open events in which the beneficiary himself
competes on his own time and without compensation from the petitioning studio
can be characterized as approaching that level of serious competition. The
beneficiary spends only a small percentage of his time competing – therefore,
this position is not primarily athletic.
It is apparent that this decision does not fairly weigh the totality of the evidence.
This decision continues to operate on the assumption that artistic and athletic
endeavors are incompatible, it takes the uniformed view that dance at all levels is a
monolithic athletic endeavor and, and it continues to hold to the line expressed in the
original denial of December 9, 2015 (which reflects a temporary policy that has
apparently been abandoned) that: [Dec p. 4]
The evidence shows the beneficiary will train athletes for competition, as well as himself
compete. The record does not show the beneficiary will be continuing employment in the
field of arts.
We have shown, and will again show below in detail, the supposition that the
coaching and choreography activities of the beneficiary are not artistic in nature is
false, it is a supposition that is not based in the record, the author of the decision
misunderstands and misconstrues the subject matter over which USCIS has no
particular expertise, and the decision is thus unreasonable. Furthermore, the
conclusion is not stated as a conclusion based in relevant facts, but is instead merely
raised as a supposition. Such uninformed suppositions have no place in USCIS
decisions. Here is yet another reason this decision should be reconsidered and
withdrawn.
The January 15 decision references a letter that was submitted by Steven XXXXX,
Director, XXXX XXXXXXX Dance Studio, Hamden. The decision cites his opinion for
support of the conclusion drawn that XXXX XXXXXXX competition is athletic in nature

12. 12
based, in part, on the reference to Olympic competition. We herewith submit a letter of
clarification from Mr. XXXXXX in which he states, in part: [Ex. 19]
DanceSport is not now an Olympic Sport nor does it appear in the foreseeable future that it
will be designated for inclusion in Olympic competition. My previous letter that has been
cited by USCIS is strictly an expression of my own personal opinion and does not represent
the position opinion for facts regarding Dancesport as a sport.
There are variants of opinion within and between all Dancesport sanctioning bodies as to
whether or not Dancesport is primarily a sport or primarily a performance art. There is no
definitive agreement on this opinion or subject of which I am aware. Therefore I request
that USCIS withdraw reference to my letter in any way that may take it as being
authoritative on the subject.
On the other hand, while it appears to conclude that DanceSport is athletic not
artistic the decision reaches the opposite conclusion that the beneficiary does not have
sustained acclaim as a competitor, despite his long record of championships and high
placings in sanctioned national open competition in Eastern Europe, specifically
Moscow, where the level of competition in DanceSport is highest. The conclusions in
this decision are utterly unsupported by evidence that establishes that the beneficiary
has won and placed highly in many major recognized events. Beyond suggesting that
the petitioner might offer additional evidence – even though no additional evidence
request was specified in the RFE – this conclusion is utterly without support and merit.
As shall be shown, this decision makes conclusions that are mutually
contradictory, the decision cites findings that are incorrect factually, uninformed by
expert understanding, and are procedurally defective according to the plain-language
of the regulations. The preponderance of the evidence shows, instead, this is an O-1B
position for which the beneficiary meets the regulatory definition for sustained acclaim
for Extraordinary Ability in the Arts. As shall be explained at greater length below, the
decision omits reference and consideration of the majority of the evidence on the
record, fundamentally misconstrues the evidence in order to support conclusions that
are variance with the record, and thus the decision should be withdrawn.
ISSUE 5: EVIDENCE – Relevant, Probative Evidence of Eligibility has not
been Considered.
The decision goes on at length at p. 7 about a single exhibit set submitted with the
original petition that documented the beneficiary’s participation in a charitable event
benefiting American veterans, “Dancing With Our Heroes” [New evidence submitted,
Ex. 22], and the decision derided the form of evidence submitted, particularly a
newspaper article in the Glastonbury (CT) ReminderNews. That section of the
decision is worth reproducing in full:
Second Criterion
To meet the second criterion, at 8 CFR 214.2(o)(3)(iv)(B)(2), you must submit evidence
that the beneficiary has achieved national or international recognition for achievements

13. 13
evidenced by critical reviews or other published materials by or about the individual in
major newspapers, trade journals, magazines, or other publications.
You provided articles from a local newspaper called the Glastonbury ReminderNews. The_
articles mention the beneficiary, but do not show any achievements by the beneficiary.
Additionally, no evidence was provided to show the Glastonbury ReminderNews is a major
publication.
In response to the RFE, you provided evidence from inSTEP Magazine and
hufjingtonpost.com that mention the beneficiary in various photographs. Although the
beneficiary is mentioned in photographs within the articles, the articles are about the
awards night and not about the beneficiary, nor do the articles show achievements of the
beneficiary as a dancer.
Additionally, you did not provide any articles from major publications by or about
the beneficiary for his achievements as a Choreographer. The article from Glastonbury
ReminderNews detailing the Dancing With Our Heroes showcase, does not show the event
to be an achievement. Furthermore, the record does not establish the Glastonbury
Reminder News as a major publication.
You have not submitted sufficient evidence that the beneficiary has achieved national or
international recognition for achievements. Accordingly, you have not established that the
beneficiary meets this criterion.
However, this discussion of Criterion 2 omits mention of the most relevant
evidence, and entire group exhibit of 43 pages of newspaper coverage, including a
New York Times article that names the beneficiary, reporting his appearance in a
performance held in Bridgeport, CT on August 29, 2015 that was also covered by
numerous other publications including the Hartford Courant and the New Haven
Register, which are also major daily newspapers. We do not see any reference to the
NYT until the Fourth Criteria of the decision, at p. 8, and nowhere else in the decision
is that directly referenced, not in the Index to new submissions with the RFE response
at p. 3 even though it is also relevant to the First, Second, Third, and Fifth criteria.
Other reporting with positive critical coverage in Group Exhibits 16-17 is not mentioned.
The decision observes with regard to Criterion 4 mentions this event and the NYT only
in passing:
Additionally, you provided evidence from the nytimes.com and thehuffingtonpost.com. The
article from nytimes.com indicates the beneficiary participated in a dance event that was
open to the public in August 2015. The article from thehuffingtonpost.com did not identify
the beneficiary, nor did the evidence show evidence of rankings. The record does not show
a record of critically acclaimed successes of the beneficiary as a performer.
There is no apparent reason why this evidence of major newspaper coverage of an
artistic dance performance featuring the beneficiary otherwise goes unreferenced in the
decision. As attorney’s letter pointed out in the RFE Response, p. 35:
More recently, the beneficiary has appeared in XXXX dance performances in

14. 14
which the beneficiary has had a lead or starring role that received extensive media
coverage in major media, including the following web articles, in the NYT and the
Hartford Courant newspapers, along with print coverage and publicity releases:
About Performance on Aug 29 2015. The show is a part of Premier Ballroom
Oance's monthly event. At Holy Trinity Greek Church Community Center in
Bridgeport, CT:
http://premierballroomdance.net/files/106418591.pdf
http://www.nhregister.com/arts-and-entertainment/20150826/award-winnersXXXXXXXX-
liubenco-dance-saturday-in-bridgeport
http://arts.hersamacorn.com/event/premier-ballroom-dance-company-2/
http://arts.hersamacorn.com/dance-participatory-and-performance-9/
http://www. minutemannewscenter.com/articles/2015/08/31/entertainment/doc55dca
6df5d738466110060.txt
http://www. rep-am.com/articles/2015/08/18/entertainment/arts/901324. txt
bttp·flwww nvtimes,com/2015/08123/nyregion/things to do-in-connecticut .. aua-
23-to-29-2015 html?ref=nyregion& r=O ·
http:! /events. ctn ow .com/events/view/273616/ballroom dance performance. html
bttp:1/events.courant com/events/view/273616/ballroom dance performance ht
ml
That recent XXXX performance with the beneficiary on August 29, 2015 also
received extensive print coverage in major newspapers, as evidenced by the following
copies of print articles: [See, Group Ex 16, Show in Bridgeport, CT, August 29, 2015].
Included thereto are publications and advertisements including an announcement in
NY Times that the Artist was to perform at the artistic event. [Exhibit 16].
Exhibit 16, as referenced, NYT notice at page 35 of a group exhibit of dozens of
newspaper articles that report events in which the beneficiary, Alex XXXXXXXX, has
performed in artistic performances:
BRIDGEPORT Premier Ballroom, at Holy Trinity Greek Church Alex
XXXXXXXX and Katya xxxxxxx, ballroom. Aug. 29 at 9:30 p.m.
General ballroom dancing from 7 p.m. to midnight. $17. Premier
Ballroom, at Holy Trinity Greek Church, 4070 Park Avenue. 203-374-
7308; premierballroomdance.net.
The decision, of course, totally ignored other press coverage of that event
including the following preview at Exhibit set 16, pp. 34-35, in the New Haven Register,
another major daily newspaper in Connecticut:
[IMAGE REDACTED]

15. 15
Regulations and Stated USCIS Policy – Evidentiary Criteria for O-1B
The evidence shows that the petitioner meets the threshold requirementfor
eligibility under 8CFR §214.2(o)(3)(iv)(B).
This petition for the beneficiary is in the category for a "PROFESSIONAL DANCE
COACH, CHOREOGRAPHER, AND PERFORMER" who meets the standard of
distinction of "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, theterm:
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.
In support of its conclusion that the position offered the beneficiary is essentially
that of competitor/coach of competition dancers, the decision states: [p. 3]
As 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, you
submitted two dance competition itineraries that indicate the beneficiary will compete in
DanceSport competitions.
The decision also quotes from one letter provided with the original petition: [p. 4]
While the Olympics continue to move forward in admitting Ballroom and Latin DanceSport
in the games; top American universities have created Ballroom Teams and the U.S. is in
dire need of qualified instructors to meet the demand of this growing industry and
competitive sport.
Nonetheless, the decision is ambiguous and leaves unspecified what significance
this material about the Olympics may have. The Center Director does not cite what
standard is actually being applied here. What is the Service policy that is being applied
to Ballroom Dance cases? What weight is being assigned to this evidence that the

16. 16
beneficiary will also engage in competition? Is it or is it not derogatory? If not
derogatory, why are his past successes in DanceSport competitors and as a coach not
analyzed to determine sustained acclaim? Instead, they are preemptively dismissed
with only a passing conclusion about their significance. As it appears that the decision
reflects a policy as of the date of writing that sustained acclaim in competition may be
counted in the weighing of the totality of the evidence as an equity favoring approval,
why are these factors raised as a basis for denial, and if not, what relevance do they
have?
The language of the decision seems to suggest that such evidence that relates to
DanceSport carries with it diminished evidentiary weight, while it also appears to
suggest that evidence of proposed participation in competition activities -- no matter that
they were shown to not be the primary activity of the beneficiary – are somehow
prejudicial, if not fatal to the petition. Throughout all these twists and turns, there is no
citation of applicable USCIS precedent of what factors might form the basis for findings
of perceived deficiencies or derogatory information. Furthermore, what objective
evidence that is cited – such as the quantification of the number of days per year spent
in each activity – when referenced, is glossed over or seemingly given no weight or
completely discounted and dismissed.
This ambiguity regarding the applicable standard of evidence, where that
policy is not settled Service policy, is improper, as it denies the petitioner and
counsel the ability to be advised in the RFE as to the grounds for potential denial
and the basis for the actual denial. Ambiguity and application of shifting
standards of evidence from the RFE and then from the first decision to the
second decision are apparent throughout the process in this case. To top this
off, in order to conform with regulatory process, the Service Center Director will
have to issue a second RFE, or approve the petition.
That ambiguity and changing standards without notice deny the petitioner
its right to regular process and is a violation of regulation and expressed, binding
Service policy. See, 8 C.F.R. § 103.2(b)(8)(iv); related, USCIS Policy Memo, PM-
602-0085, (June 3, 2015).
An example of how the beneficiary’s involvement in dance competition is implied
to be his primary activity, and how this is cited as derogatory without reference to any
authority or Service guidance, can be seen in the decision for Mr. XXXXXXXX at
page 6 with regard to Criterion One. The decision therein states:
You provided an employment agreement rider that states, "Professional Dance Coach,
Choreographer, and Performer. This includes studio lessons, training students for
competition, accompanying students to competitions, choreography of routines and
performances, performances in non-competition events (i.e. non-judged performances,
exhibitions and showcases) and job related administrative work: 252 days/year."
Counsel contends that the beneficiary will primarily teach dance; however, the record
shows the beneficiary will teach students who will then compete at dance
competitions for awards and prizes. The record does not show the beneficiary will
perform services as a choreographer in distinguished artistic productions or
events.

17. 17
Counsel further indicates that the competitions in which the beneficiary will participate
are incidental to his duties as a coach and instructor. However, the itinerary submitted
as part of the initial evidence shows a weekly schedule of dance competitions
sponsored by the National Dance Council of America.
You also provided an updated itinerary that details the beneficiary will participate at
XXXX competition events, such as the New England DanceSport Championship, the
National Dance Championships and World Championships, and the 50th Colonial
Classic-Inter-Regional Competition. The record did not establish how each individual
event is distinguished.
Furthermore, the record does not show the beneficiary will perform in
distinguished artistic productions or events.
Similarly, with regard to Criterion 5, Significant Recognition, pp. 5-6, the
denial states:
The evidence shows the beneficiary trains individuals who compete at athletic
dance competitions. The record does not show how participating at internally run
dance competitions for the XXXX XXXXXXX dance organization are significant
achievements in the field.
In response to the RFE, you submitted a list of amateur Moscow Dancesport Federation
dance competitions in which the beneficiary participated from February 1996 through
April 23, 2006. Additionally, you submitted corresponding participation certificates with
translations for each competition. Counsel contends that the AAO has previously held,
"The petitioner submitted copies of various awards the beneficiary received in
Dancesport competitions, including first place finishes in several competitions. These
first place finishes constitute 'significant recognition for achievements from organizations
in the field' pursuant to the plain language of the criterion." In the instant petition, you
provided an undated letter from XXXXXXXX XXXXXXXX, a Russian ballroom dance
teacher and World Dance Council (WDC) judge of All-Russian category, that states,
"These achievements are widely acknowledged, and they constitute achievements of
Alexander XXXXXXXX in the dance sports.
However, you provided the beneficiary's resume which indicates the listed events
are amateur events. The record does not support the letter that the dance events are
widely known events. Additionally, if the referenced competitive events are major --
nationally or internationally-recognized events as claimed, it is reasonable for the
petitioner to provide additional evidence that the listed events are significant
achievements.
Again, no notice was taken of these sustained accomplishments in the denial, and
the basis for finding deficiencies has until the decision been unspoken (beyond the fact
that they were in dance competition, previously presumed to not have relevance to
sustained acclaim in the Arts), therefore, the petitioner has not been been given
regulatory process. Furthermore, the stated reason that these competitions are in the

18. 18
decision now found to be unsubstantiated as recognized national or international
awards – the competition was “amateur” – is shown to be in error and, in fact, not
consistent with the real world operations and hierarchy of dance competition.
In addition, the decision fails altogether to reference or weigh substantial evidence
on the record related to the beneficiaries’ recognition as a Ballroom Dance performer
that also applies to several eligibility criteria. For instance, there is no reference made
in the decision to voluminous evidence on the record of extensive major newspaper
coverage of the petitioner’s starring role at dance events, particularly evidence at
Exhibits 16 and 17 of the RFE Response, to a performance starring the beneficiary and
his Dance partner held in Bridgeport, CT on August 29, 2105, the beneficiary named in
the leading role by the New York Times, the Hartford Courant, and the New Haven
Register, and a number of other newspapers. Instead, we find a perfunctory statement
and repetition regarding findings of deficiencies in the evidence pertaining to roles with
organizations and establishments submitted in the original petition.
Yet, the RFE and the decision omits any reference to this evidence beyond a
passing mention of generic “newspaper articles” in the decision’s Index to newly
submitted materials in the Response to the RFE.
The regulations at 8 C.F.R. § 103.2(b)(8)(iv) require that a Request For Evidence
or Notice of Intent to Deny state:
. . . the bases for the proposed denial sufficient to give the applicant or petitioner
adequate notice and sufficient information to respond
Please note that the same regulatory standard applies to the
sufficiency of RFEs and Notices of Intent to Deny, as stated at 8 C.F.R. §
103.2(b)(8)(iv).
In addition, current articulated Service policy with regard to issuance of
an RFE and review of “all of the evidence” received states that a balancing test
of all relevant evidence is appropriate, and that all evidence must be considered
at each stage of adjudication. See, USCIS Policy Memo, PM-602-0085, (June
3, 2015)
A. General Principles: RFEs and NOIDs
The guidance articulated under this heading is generally applicable. However, there may
be special circumstances where the general principles do not apply. In such instances,
there will be accompanying special instructions that will provide alternate guidance. In
the absence of special instructions, officers must follow these general principles.
In each case, officers must:

19. 19
• Understand the specific elements required to demonstrate eligibility for the particular
application, petition, or request.
• Understand the standard of proof that applies to the particular application, petition, or
request. In most instances, the individual has the standard of proving eligibility by a
preponderance of the evidence. Under that standard, the individual must prove it
is more likely than not that each of the required elements has been met.
• Review all the evidence to determine whether each of the essential elements has
been satisfied by the applicable standard of proof. [emphases added]
Finally, the Policy memo advises that while the examiner should attempt to
anticipate all issues with the initial RFE, a second RFE may be issued if necessary:
B. Additional Considerations
In some cases, particularly where the response to an RFE opens up new lines of
inquiry, a follow-up RFE might prove necessary. However, officers must include in a
single RFE all the additional evidence they anticipate having to request. The officer’s
careful consideration of all the apparent gaps in the evidence will minimize the need for
multiple RFEs.
In the present matter, the second denial – like the first decision and the RFE
before it -- is ambiguous as to the standard of evidence applied and fails to reference,
weigh or address all the substantive evidence on the record. Therefore, the decision
and RFE fail to adequately advise the petitioner of the evidence considered, and in
effect, the petitioner its right to be adequately advised of the bases denial. More
fundamentally, the petitioner was denied sufficient information to be advised of the basis
of the denial and to respond to the RFE. The Service Center Director may now
issue another RFE or proceed to approve the petition on the basis of the existing
record.
The AAO has held that in cases where the RFE ignores the totality of the
evidence or applied an improperly high standard of proof, and unfairly based a decision
on eligibility criteria that are inappropriate or unfairly withheld from a notice, that the
petitioner has been denied an opportunity to respond, on this basis the AAO has either
overturned the resulting decision of the Center Director or remanded the case on that
basis.
In an October 19 2011 decision, enclosed herein as Exhibit 17,
Oct192011_01D7101.pdf, the AAO stated the reasons for finding deficiencies in the
Service Center’s decision, laying down the reasons it will hold against the Service in
matters related to deficient notices:

20. 20
On appeal, counsel for the petitioner asserts that the director ignored the totality of
the evidence the petitioner submitted in rebuttal to the notice of intent to revoke,
applied an improperly high standard of proof, and unfairly based the final
revocation decision on several pieces of adverse information that were withheld
from the notice of intent to revoke. As such counsel asserts that the petitioner was
denied its right to respond to derogatory evidence used against it pursuant to 8 C.F.R. §
103.2(b)(16)(i).
Upon review, the AAO agrees with counsel that the director's notice of intent to
revoke did not provide adequate notice to the petitioner of all possible derogatory
information that informed the director's final decision in this matter. Accordingly,
the AAO has reviewed the additional rebuttal evidence submitted in support of the
appeal. Upon review of the totality of the evidence submitted, the petitioner has
overcome the stated grounds for revocation of the petition approval. [emphases added]
In a recent case that more directly considers the proper standard that should
be applied in O-1B matters pertaining to dancers, The AAO has held that where the
beneficiary has established the prerequisite acclaim as both a competitor and a coach
at a national or international level, the Service will consider the beneficiary’s
achievements in both these areas as part of the totality of the evidence in meeting the
definition of Extraordinary Ability in the Arts as defined at 8 C.F.R. § 214.2(o)(3)(ii)
We note that in recent O-1B cases considered by the Vermont Service
Center, that the evidentiary standard articulated is highly similar to a non-
precedent AAO decision, issued on October 14, 2014, herewith attached as
Exhibit 2 (available at AAO Administrative Decisions as
OCT142014_01D8101.pdf), which articulates a "balancing" test for when a
dancer with significant athletic achievements and coaching experience may be
considered under the O-1B Artist standard to establish the beneficiary’s
expertise:
[T]his office has recognized that there exists a nexus between playing or
practicing and coaching a given sport. To assume that every competitive
dancer's area of expertise includes teaching or instruction, however, would
be too speculative. To resolve this issue, the following balance is
appropriate. In a case where an alien has clearly demonstrated
extraordinary ability as a dancer-athlete and has sustained that acclaim in
the field of instruction, we can consider the totality of the evidence as
establishing an overall pattern of sustained acclaim and
extraordinary ability such that we can conclude that instruction is within
the beneficiary's area of expertise. Specifically, in such a case we will
consider the level at which the alien acts as an instructor. An instructor
who has an established successful history of instructing dancers
who compete regularly or perform at a high level has a credible claim;
an instructor of novices does not. [emphases added] [p.6]

21. 21
We have shown that under the above-stated standard, the beneficiary meets
the O-1B standard for Extraordinary Ability dancers under the totality of the evidence
standard.
III. Conclusion
Wherefore, inasmuch as good cause has been shown, petitioner respectfully
requests that the Service Center Director reconsider the decision of January 15,
2016 and withdraw it. There is a regulatory requirement that the petitioner be
advised of all grounds for potential denial. However, the second denial cited
substantive new grounds for denial referencing the significance of dance
competition without prior substantive reference to that topic in either the RFE or the
first denial issued. In addition, as has been shown, the decision of January 15,
2016 omitted mention or consideration of articles detailing the beneficiary’s starring
role in an artistic performance that was covered in several major newspapers. The
decision also did not weigh evidence that demonstrates the position offered does
not primarily involve the beneficiary in athletic dance competition or in coaching
athletes, but instead concluded that the position is athletic in nature without proper
foundation. No explanation was given why weight was not given the quantification
of percentages of time spent on noncompetition and competition tasks, or why that
might have been considered insufficient. These are not harmless errors, therefore
the Center Director must either issue another RFE to fully advise the beneficiary of
perceived deficiencies in the specific evidence submitted, or this petition may under
AAO precedent decision be approved as is.
IV. Request for Expedited Consideration
On behalf of the petitioner, we request that this Motion be accorded expedited
consideration on account of economic hardship to the petitioning studio. The services
of the beneficiary have substantial commercial, economic, and reputational value to the
petitioner, which during the prolonged adjudication of this matter are lost to the
petitioner. Please see, attached Ex. 20. While this matter remains pending, the value
of the beneficiary’s extraordinary and unique services are irrevocably lost, and the
petitioner does not consider the beneficiary to be a fungible commodity.
Finally, petitioner retains the right to withdraw this matter if it is not decided
expeditiously in order to prevent any more undo prejudice against the beneficiary for
accruing unlawful presence.

22. 22
Respectfully submitted by Counsel on behalf of the petitioner,
Sincerely yours,
xxxxxxxxxxxxxxxx, Esq.
Attorney
NY State Bar Association: xxxxxxxxxxx
Enclosures