Non precedent aao decisions for extraordinary ability visas 2012 final

Non Precedent AAO Decisions for Extraordinary Ability (E11) Visas 2012Compiled by Joseph P. Whalen (July 15-21, 2013)

Jan052012_01B2203.pdf Appeal Dismissed

The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *In light of the above, the petitioner has not submitted the requisite evidence under at least three of the evidentiary categories for which evidence must be submitted to meet the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will review the evidence in the aggregate as part of our final merits determination.

The AAO initially proceeded with an unnecessary Final Merits Determination in all cases in which it found that the petition was not accompanied by evidence meeting at least three of the ten possible evidentiary categories of 8 CFR § 204.5(h)(3)(i)-(x). That trend changed at some point in 2012. Watch for it!


The petitioner seeks classification as an "alien of extraordinary ability" as a "Race Car Driver/Team Manager,"1 pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *

1 In athletics.

Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page

II. Continuing to work in the area of expertise in the United States

The statute and regulations require that the petitioner seeks to continue work in his area of expertise in the United States. See section 203(b)(l)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(l)(A)(ii); 8 C.F.R. § 204.5(h)(5). It is important to note that on the Form 1-140, Immigrant Petition for Alien Worker (Form 1-140), under Part 6, "Basic information about the proposed employment," the petitioner states the beneficiary's job title will be "Race Car Driver/Team Manager" and it provides the following nontechnical job description:

Continue to develop and manage the race car division within [the petitioner's company.] Duties will include developing and managing the race car team and its race cars and perform required duties incidental to car racing which include maintaining and repairing of company race cars and performing the necessary tests on the same. Will represent and promote company and provide publicity of our products to sponsors, potential sponsors and clients. As the team manager, he will be the owner's right hand man. He oversees the day-to-day administrative duties that keep our team running. He is required to work closely with the crew chief, who oversees all of the hands-on activities related to building and tweaking the car that will race on the track. These activities include designing the body, adjusting the suspension, turning the engine and more.

It is apparent that a conflict exists between the job title and the job description, as the job description contains no reference to the beneficiary's proposed employment in the United States relating to driving a race car. The beneficiary's Form G-325A, Biographic Information indicates the beneficiary's occupation from March 2005 until the date he signed the form, December 18. 2008, was a race car driver. The vast majority of the beneficiary's recognition through awards, membership, and published material initially filed with the petition relates to his achievements as a driver. However, the evidence related to the alien's contributions of major significance primarily relates to his work as a shock and suspension specialist. Based on the information provided in the job description portion of the Form 1-140, the record is clear that the petitioner intends for the


beneficiary to continue to work as a team manager of a race car team in the United States.

Aside from documentation establishing the petitioner's intention to employ the beneficiary as a race car team manager and for the beneficiary to continue to work in the United States as such, the petitioner submitted evidence of the beneficiary's athletic accomplishments as a race car driver. It is not apparent when the beneficiary's primary profession as a race car driver ended; however, it is clear that the petitioner now intends for the beneficiary to serve the organization as a manager of the race car team. While a race car driver and a race car team manager may share knowledge of the sport, the two rely on very different sets of basic skills. Thus, competitive athletics and managing are not the same area of expertise. This interpretation has been upheld in Federal Court. In Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002)…….

.

Note that sequential No. three is missing; it is not posted.

There are several cases in which the major issue is that someone had extraordinary ability in one area but were being petitioned to do something else, usually quite closely related. Like the race car driver (turned mechanic) who would become a Team Manager, the extraordinary ability was in performing the task which he would be employed to Manage and therefore was not actually qualified as an extraordinary Team Manager. There is also a similar case for a fencing champ who would become a “fencing coach”, look for it.

Jan052012_04B2203.pdf Appeal Withdrawn & Finding of Material Misrepresentation

The petitioner seeks classification as an "alien of extraordinary ability" in the arts pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined that the petitioner had not established the requisite extraordinary ability through extensive


documentation and sustained national or international acclaim.

Fraudulent documents were submitted and discovered.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics.FN1 The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim. The director also determined that the petitioner had not submitted clear evidence that he would continue to work in his area of expertise in the United States.

* * * * *FN1 According to information on the Form I-140, Immigrant Petition for Alien Worker, the petitioner was last admitted to the United States on July 2, 2007 as a B-2 nonimmigrant visitor for pleasure.

* * * * *The AAO concurs with the director's determination that the petitioner has failed to demonstrate his receipt of a major, internationally recognized award, or that he meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).

AAO proceeded with the Final Merits determination anyway. Lastly, this case also involved the issue of not continuing to work in the same occupation as the extraordinary ability.


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences. …….

* * * * *On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed below, the AAO


upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.


The petitioner seeks classification as an "alien of extraordinary ability" in the performing arts, as a perch pole balancing performer,…

Jan102012_06B2203.pdf Appeal Rejected

Prior Appeal was Summarily Dismissed; no MTR filed; Letter Request claiming USCIS error investigated and unsupported; this 2nd Appeal Must be Rejected because:

The AAO does not exercise appellate jurisdiction over its own decisions. The AAO exercises appellate jurisdiction over only the matters described at 8 C.F.R. § 103. 1 (f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1(effective March 1, 2003)2. Accordingly, the appeal is not properly within the AAO's jurisdiction.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I 153(b)(1)(A), as an alien of extraordinary ability in the sciences. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences,….

* * * * *On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.

2 SEE: http://www.slideshare.net/BigJoe5/uscis-foia-release-10-052011


* * * * *Evidence that the alien has commanded a high salary or other significantly high remunerations for services, in relation to others in the field.

The petitioner submits his Form W-2 Wage and Tax Statements (W-2) from 2008 and 2009, and a salary survey for a software engineer in the Houston, Texas area reported on January 16, 2010. The director determined that the petitioner meets the plain language requirements of this criterion. The AAO withdraws the director's eligibility determination related to this criterion.

* * * * *In light of the above, the petitioner has not submitted the requisite evidence under at least three of the evidentiary categories for which evidence must be submitted to meet the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will review the evidence in the aggregate as part of our final merits determination.


It’s date-stamped Jan 10; not 11. It is a repeat listing, of the same decision.

The petitioner seeks classification as an "alien of extraordinary ability" in the performing arts, as a perch pole balancing performer, …..


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics.3 The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.* * * * *On appeal, counsel asserts that the petitioner has achieved

3 light middleweight professional boxer


sustained national and international acclaim and that his achievements have been recognized in his field of expertise. Counsel further states that the director disregarded comparable evidence of the petitioner's extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The AAO acknowledges that the standard of proof is preponderance of the evidence, as noted by counsel on appeal. The "preponderance of the evidence" standard, however, does not relieve the petitioner from satisfying the basic evidentiary requirements required by the statute and regulations. Therefore, if the statute and regulations require specific evidence, the petitioner is required to submit that evidence. See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. §§ 204.5(h)(2) and (3). In this matter, the documentation submitted by the petitioner fails to demonstrate by a preponderance of the evidence that he has achieved sustained national or international acclaim and that he is one of the small percentage who has risen to the very top of the field of endeavor.

* * * * *The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten categories of evidence "do not readily apply to the beneficiary's occupation." Thus, it is the petitioner's burden to demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the alien's occupation and how the evidence submitted is "comparable" to the specific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x).

Jan132012_01B2203.pdf Rejected as Untimely

Jan132012_02B2203.pdf Summarily Dismissed

On appeal, rather than challenging any of the director's specific findings, counsel merely claims that the documentary evidence meets the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). Specifically, counsel asserts:

We respectfully assert that clear evidence was submitted showing that in particular [the petitioner] has made great contributions to the field through both his research work as well as clinical abilities, both well attested to by both his peers with whom he has worked as well as independent testimonials from prominent members of the


field at prominent institutions, and citation of his original work by later researchers. In addition [the petitioner] is a member of most [sic] of the most prominent medical societies in the country. Generally, these societies do not require outstanding achievements on the part of their members, but this is the norm with regard to American medical societies as we respectfully assert. In addition, [the petitioner's] record of publication is very impressive as is his record of presentation at major conferences. He has also sustained citations in prominent journals. Furthermore he has judged the work of even senior peers on several levels. Also there are testimonials submitted showing that he has been indispensable member of his current department and institution.

The regulation at 8 C.F.R. § 103.3(a)(1)(v) provides that "[a]n officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal." In this case, counsel has not identified as a proper basis for the appeal an erroneous conclusion of law or a statement of fact in the director's decision. Instead, counsel made general assertions without specifically identifying any erroneous conclusion of law or statement of fact for the appeal. Again, counsel offers no argument that demonstrates error on the part of the director based upon the record that was before him.

Jan132012_03B2203.pdf Motion Dismissed

DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition on February 5, 2008. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal of that decision on April 2, 2009. The matter is now before the AAO on a motion to reconsider. The motion will be dismissed, the previous decision of the AAO will be affirmed, and the petition will remain denied.

In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the motion must be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding." Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires that "[a] motion that does not meet


applicable requirements shall be dismissed. In this case, the petitioner failed to submit a statement regarding if the validity of the decision of the AAO has been or is subject of any judicial proceeding.

Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original appeal, the AAO found that the petitioner failed to establish that he meets at least three of the regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and thoroughly discussed the petitioner's evidence and determined that the petitioner failed to establish eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), the scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), and the high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix). In fact, the AAO found that the petitioner failed to establish eligibility for any of the criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3).

* * * * *

ORDER: The motion to reconsider is dismissed, the decision of the

AAO dated April 2, 2009, is affirmed, and the petition remains denied.

Jan172012_01B2203.pdf Rejected as Untimely


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, …… * * * * *On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.


The petitioner seeks classification as an "alien of extraordinary Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page

ability" in athletics, …. * * * * *FN1 Within the initial filing brief, counsel states, [REDACTED] might be directly beneficial to US economy because he will be the US singer. Further, he wants to run a music school in future [sic] and teach Wushu to the US Citizen and also might be very beneficial to US employers who have been engaging Wushu training school."

Jan232012_02B2203.pdf Appeal Dismissed and an Administrative

Finding of Misrepresentation

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The AAO will also enter a separate administrative finding of willful material misrepresentation.

* * * * *The petitioner seeks classification as an "alien of extraordinary ability" as an "alternative medicine specialist," ….. [in sciences]

* * * * *By submitting articles authored by another researcher as his own and by submitting a letter from a purported expert who has never worked where she claimed, the petitioner has willfully misrepresented material facts.


DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, California Service Center. On further review of the record, the director issued a notice of intent to revoke the approval of the petition (NOIR). The director, Nebraska Service Center, issued a second NOIR after determining that the initial NOIR did not adequately articulate the proposed grounds for revocation. In a Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form 1-140). The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.* * * * *The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1 )(A) of the Act, 8 U.S.C. § 1153(b)


(1)(A). The director determined that the petitioner was prohibited from approval of the petition pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c) because she attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director also determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

Jan242012_01B2203.pdf Motions Dismissed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition4 on March 6, 2008. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal of that decision on June 29, 2009. The matter is now before the AAO on a motion to reopen and a motion to reconsider. The motions will be dismissed, the previous decision of the AAO will be affirmed, and the petition will remain denied.

* * * * *….. in the AAO's decision dismissing the petitioner's original appeal, the AAO found that the petitioner failed to establish that he meets at least three of the regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and thoroughly discussed the petitioner's evidence and determined that the petitioner failed to establish eligibility for the awards criterion at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv), the original contributions criterion at 8 C.F.R. § 204.5(h) (3)(v), the display criterion at 8 C.F.R. § 204.5(h)(3)(vii), the high salary criterion at 8 C.F.R. § 204.5(h)(3)(ix), and the commercial success criterion at 8 C.F.R. § 204.5(h)(3)(x). In fact, the AAO found that the petitioner failed to establish eligibility for any of the criteria under the regulation at 8 C.F.R. § 204.5(h)(3), in which the petitioner must submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish the basic eligibility requirements.

* * * * *FN1 It is noted that the attorney who represents the petitioner is currently on the Executive Office for Immigration Review list of currently disciplined practitioners. The attorney is also suspended by the District of Columbia and has no record with the Client

4 In the arts as an actor (from Nepal).


Protection Fund Listing of Maryland. Therefore, the AAO does not recognize counsel in this proceeding.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a management consultant. 5 The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

The above discusses the “one-time” achievement criterion and overturns some of the director’s favorable findings-of-fact.


Medical Researcher has a promising future but is not yet of “extraordinary ability”. [in sciences]

Feb082012_02B2203.pdfAppeal Dismissed

This petition, filed on May 20, 2010, seeks to classify the petitioner as an alien with extraordinary ability as a research associate. [in sciences]


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

5 In business.


* * * * *On December 5, 2011, in accordance with the regulation at 8 C.F.R. § 103.2(b)(16)(i), the AAO issued a notice advising the petitioner of derogatory information regarding his claimed employment with Rio's D'Sudamerica and his intent to continue to work in his area of expertise. In response, the petitioner submitted documentary evidence overcoming the derogatory information discussed in the AAO's notice.

* * * * *This petition, filed on July 17, 2009, seeks to classify the petitioner as an alien with extraordinary ability as a "Culinary Artist of Peruvian Cuisine."

Prior 0-1 Nonimmigrant Visa Status is not dispositive of EB-1 I-140.

Feb102012_01B2203.pdfAppeal Sustained

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in the sciences. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *On appeal, counsel asserts that the petitioner meets at least three of the categories of evidence at 8 C.F.R. §§ 204.5(h)(3). For the reasons discussed below, the AAO finds that the petitioner meets the statutory and regulatory requirements for classification as an alien of extraordinary ability.

* * * * *This petition, filed on June 1, 2010, seeks to classify the petitioner as an alien with extraordinary ability as a physician researcher in the field of rheumatology. Upon review of the petitioner's appeal and the documentation of record, the AAO finds that the petitioner's evidence meets the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iv), (vi), and (viii). Accordingly, the petitioner meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).


Feb102012_03B2203.pdfAppeal Sustained

The petitioner is an engineering, procurement, construction, and maintenance services company. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. The director determined the petitioner had not established that the beneficiary has the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *On appeal, counsel asserts that the beneficiary meets at least three of the ten regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, the AAO finds that the beneficiary meets the statutory and regulatory requirements for classification as an alien of extraordinary ability.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a violist. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim. [in arts]

This case covers One-Time Achievement; 3 of 10 criteria; and prior O-1 NIV status.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a tabla performer and teacher in Indian classical music. The director determined that the petitioner had not established the requisite


extraordinary ability, failed to submit extensive documentation of his sustained national or international acclaim, and failed to establish his intention to continue to work in the United States in his area of expertise.

Oral Argument was requested but denied; and intersperses discussion of comparable evidence.


The petitioner is an investment management company. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section, 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of ability in business. The director determined the petitioner had not established that the beneficiary has the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *On appeal, counsel asserts that the beneficiary meets at least three of the ten regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3) and that the petitioner submitted comparable evidence of the beneficiary's extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4)., The AAO acknowledges that the standard of proof is preponderance of the evidence, as noted by counsel on appeal. The "preponderance of the evidence" standard, however, does not relieve the petitioner from satisfying the basic evidentiary requirements required by the statute and regulations. Therefore, if the statute and regulations require specific evidence, the petitioner is required to submit that evidence. See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R., §§ 204.5(h)(2) and (3). In this' matter, the documentation submitted by the petitioner fails to demonstrate by a preponderance of the evidence that the beneficiary has achieved sustained national or international acclaim and that he is one of the small percentage who has risen to the very top. of the, field of endeavor.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration


and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences and business. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *The AAO concurs with the director's determination that the petitioner has failed to demonstrate his receipt of a major, internationally recognized award, or that he meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).

B. Final Merits Determination

The AAO will next conduct a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the present matter, many of the deficiencies in the documentation submitted by the petitioner have already been addressed in the AAO's discussion of the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i) - (iii), (v), (vi), and (viii).

Feb292012_01B2203.pdfMotion Dismissed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition on June 18, 2009. On appeal, the Administrative Appeals Office (AAO) found that the petitioner did not meet its burden of establishing eligibility for the benefit sought and dismissed its appeal on August 19, 2010. The matter is now before the AAO on a motion to reopen and reconsider. The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.

Above is heavy on procedural points and worth reading for yourself.

Mar052012_01B2203.pdf Appeal Rejected


DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition on November 27, 2009. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal of that decision on December 28, 2010. Counsel filed a motion to reopen and a motion to reconsider the AAO's decision. Instead of forwarding the motions to the AAO, the director erroneously dismissed the motions on March 31, 2011. On September 22, 2011, the AAO reopened the proceeding on its own motion to consider the merits of the petitioner's motions and afforded the petitioner the opportunity to respond to derogatory information regarding Atlantic International University. On December 7, 2011, the AAO affirmed its prior decision denying the petition and dismissed the petitioner's motion to reopen and motion to reconsider. The matter is now before the AAO on a second appeal [REDACTED]. The appeal will be rejected.

Lack of jurisdiction to hear anything further in the case except by sua sponte motion.

Mar052012_02B2203.pdf Appeal Rejected

Appears to be same as above decision.

Mar072012_01B2203.pdf Appeal Dismissed

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

Discusses Prior P-l Nonimmigrant Visa Status.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. The director determined that the petitioner had not established the requisite


extraordinary ability and failed to submit extensive documentation of her sustained national or international acclaim.

* * * * *B. Summary

The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence.

* * * * *III. CONCLUSION

The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien has achieved sustained national or international acclaim and is one of the small percentage who has risen to the very top of the field of endeavor.

Even [I]f the petitioner had submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, the AAO need not explain that conclusion in a final merits determination.FN5 Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. at 1122.

The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved.

The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.


ORDER: The appeal is dismissed._________________

FN5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).

.The above decision marks the turning point in application of Kazarian as heavily influenced by the Amicus Briefs.

Mar122012_03B2203.pdf Motions Dismissed

Pearl Harbor Remembrance Day is not a Federal legal holiday.


The petitioner seeks classification as an "alien of extraordinary ability" in the arts, …..

* * * * *On appeal, counsel provides a statement on the Form I-290B, Notice of Appeal or Motion, and indicates that he would submit a brief to the AAO within 30 days of the appeal. Counsel dated the appeal October 4, 2010. As of this date, more than 16 months later, the AAO has received nothing further. The AAO will adjudicate the appeal based on the record before the director, taking into account counsel's assertions on the Form I-290B. The AAO upholds the director's ultimate determination that the petitioner has not established her eligibility for the classification sought.

* * * * *Summary


In light of the above, the petitioner has not submitted the requisite evidence under at least three of the evidentiary categories for which evidence must be submitted to meet the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. Notwithstanding this fundamental defect and because the director reached the next step, the AAO will review the evidence in the aggregate as part of the final merits determination.


The petitioner is a non-profit children's hospital. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences…… [Pediatric Neurologist]

This case looks at comparable evidence and includes a pointless Final Merits Determination.


The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a director of operations in real estate. The director determined that the petitioner had not established the beneficiary's requisite extraordinary ability and failed to submit extensive documentation of her sustained national or international acclaim. [in business]

You’ll have to read it to believe it! The “regs don’t apply to me” argument is just plain idiotic.


The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The petitioner listed her proposed employment as a "Dance ChoreographerlPerformerlDirector." In her initial statement, she


asserts that the petition is based on her contributions "to the field of dance choreography and pioneering work in Ethno-contemporary dance." The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *……The AAO is not persuaded that articles posted on the Internet from a printed publication or from an organization are automatically considered major media……..In today's world, many organizations and newspapers, regardless of size and distribution, post at least some of their stories on the Internet. To ignore this reality would be to render the "major media" requirement meaningless. The AAO is not persuaded that international accessibility by itself is a realistic indicator of whether a given website is "major media."

* * * * *The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence.

No Final Merits Determination deemed necessary. AAO retains jurisdiction as stated in the new standard footnote shown above in case a court deems that the evidence does meet at least three of the ten criteria. As AAO, did not reach the Final Merits, a Court should only be able to remand for further consideration rather than label a decision capricious and arbitrary.


I. Intent to Continue to Work in the Area of Expertise in the United States

The AAO notes here that in Part 5 of Form 1-140, Immigrant Petition for Alien Worker, the petitioner listed his occupation as a "Professional Tennis Instructor." In addition, in Part 6, the petitioner listed his proposed employment as a "Professional Tennis Instructor." Moreover, the petitioner submitted a letter from [REDACTED] Twin Oaks Tennis Academy, offering the petitioner the position as a coach for the academy. Thus, the record reflects that the petitioner is seeking classification as an alien of extraordinary ability as an instructor or coach rather than as a competitor. Even though the petitioner submitted


documentation regarding his involvement in earlier tournaments as a competitor, which will be discussed later in this decision, the record reflects the petitioner's intent to work in the United States as a coach.

The statute and regulations require the petitioner's national or international acclaim to be sustained and that he seeks to continue work in his area of expertise in the United States. See sections 203(b)(1)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1153(b)(1)(A)(i) and (ii), and 8 C.F.R. §§ 204.5(h)(3) and (5). While a tennis coach and a tennis player share knowledge of the sport, the two rely on very different sets of basic skills. Thus, tennis instruction and tennis competition are not the same area of expertise. This interpretation has been upheld in federal court. In Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated:

It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as working in the same profession in which one has extraordinary ability, not necessarily in any profession in that field. For example, Lee's extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach.

Id. at 918. The court noted a consistent history in this area. In the present matter, there is no evidence showing that the petitioner has sustained national or international acclaim through achievements as a tennis competitor or that he intends to compete here in the United States. While the AAO acknowledges the possibility of an alien's extraordinary claim in more than one field, such as tennis competition and tennis instruction, the petitioner, however, must demonstrate "by clear evidence that the alien is coming to the United States to continue work in the area of expertise." See the regulation at 8 C.F.R. § 204.5(h)(5).

Based on the petitioner's answers to the questions on Form 1-140 and the submitted documentation, the record reflects that the petitioner intends to continue to work in the area of tennis coaching rather than the area of tennis competition. Ultimately, the petitioner must satisfy the regulation at 8 C.F.R. § 204.5(h)(3) through his achievements as a tennis instructor or coach.

B. Summary




This petition, filed on September 28, 2009, seeks to classify the petitioner as an alien with extraordinary ability as an ice figure skater..[in athletics]

The above contains another pointless FMD.

Mar212012_01B2203.pdf Summarily Dismissed

Fails to state a claim or anything of substance.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

* * * * *Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the context of a final merits determination. In this matter, the AAO will review the evidence under the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of three types of evidence.


Made no arguments and submitted no brief. Deadline has long passed.Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, specifically, in the field of chromatography and analytical chemistry, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act or INA), 8 U.S.C. § 1153(b)(1)(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * * …. As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of presenting three types of evidence. Kazarian, 596 F.3d at 1122.


This fashion model was not at the top of her field, yet. Failed to meet 3 of 10, no Final Merits done, jurisdiction retained by AAO.Mar282012_01B2203.pdf Appeal Dismissed

The petitioner is a fencing club. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics. The director determined that the petitioner had not established the requisite extraordinary ability for the beneficiary and failed to submit extensive documentation of his sustained national or international acclaim.

Perhaps a great competitor/player but no acclaim as “coach”.


The petitioner seeks classification as an "alien of extraordinary ability" as a pianist in the arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). At the time of filing, the petitioner was a full-time student


studying piano at Southern Methodist University's Meadows School of the Arts while also serving on the faculty at the University of Dallas teaching advanced piano. The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *On appeal, the petitioner, through counsel submits a brief with additional documentary evidence. Generally, counsel asserts that the director's Notice of Intent to Deny (NOID) did not sufficiently give notice of the deficiencies in this matter. According to the current rule, enacted prior to the date of filing, the director was not required to issue any notice prior to denying the petition for a lack of initial or other evidence. 8 C.F.R. §§ 103.2(b)(8)(ii), (iii) enacted pursuant to 72 Fed. Reg. 19100 (June 18, 2007). The AAO will consider counsel's response to the deficiencies raised in the final denial on appeal. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.

* * * * *Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, the AAO need not explain that conclusion in a final merits determination. FN7 Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. at 1122.

* * * * *FN7 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last


decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2(03); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.l(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).

Mar292012_01B2203.pdf Appeal Dismissed as Moot

Review of U.S. Citizenship and Immigration Services' records indicates that the petitioner was granted lawful permanent residence on January 13, 2011. Therefore, further pursuit of the matter at hand is moot.


No follow up after 11 months.


DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, Texas Service Center. Subsequently, the director issued a notice of intent to revoke (NOIR) the approval of the petition. In a Notice of Revocation (NOR), the director ultimately revoked the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed.

No argument or evidence offered. Mere unsubstantiated rhetoric with no follow up offering any actual challenges to findings of fact or law is insufficient for an appeal or motion.


The petitioner seeks classification as an alien of extraordinary ability as a make-up artist, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

Mar302012_03B2203.pdf Appeal [Summarily] Dismissed


DISCUSSION: The director, Texas Service Center, denied the employment-based immigrant visa petition on March 23, 2011. On May 12, 2011, the director granted the petitioner's motion to reopen, but again denied the visa application. The petitioner appealed the May 12, 2011 decision with the Administrative Appeals Office (AAO) on June 10, 2011. The appeal will be dismissed.

The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in the athletics, specifically, as a professional tennis player, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act or INA), 8 U.S.C. § 1153(b)(1)(A). The director determined that the petitioner has not established the beneficiary's sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

On appeal, counsel stated:

Sufficient evidence was submitted showing that beneficiary admittedly fit all required criteria. Center Director applied incorrect standard and decision is wrong as a matter of law, as it states that beneficiary meets all required criteria.

Counsel also indicated on the Notice of Appeal or Motion (Form I-290B) that in support of the appeal, she would submit a brief and/or additional evidence to the AAO within 30 days. The Form I-290B is dated June 9, 2011. As of this date, more than nine months later, the AAO has received nothing further from counsel.


In ?business?


DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service Center, on April 8, 2010. The director dismissed the petitioner's motion to reconsider on July 13, 2010, and is now before the Administrative Appeals Office (AAO) on


appeal.FN1 The appeal will be dismissed.* * * * *

FN1 The AAO notes that Form 1-290, Notice of Appeal or Motion, was filed and signed by the petitioner. Although the petitioner was represented by [REDACTED] regarding her Form 1-140, Immigrant Petition for Alien Worker, there is no evidence that [REDACTED] is involved with the filing of this appeal. Moreover, the appeal was not filed with a new and properly executed Form G-28, Notice of Entry of Appearance as Attorney or Representative, as required pursuant to the regulation at 8 C.F.R. § 292.4(a). As such, [REDACTED] is not recognized as the attorney of record for this proceeding.

* * * * *At the initial filing of the petition, prior counsel claimed the petitioner's eligibility based on her receipt of a major, internationally recognized award pursuant to the regulation at 8 C.F .R. 204.5(h)(3), and the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i). In response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8), counsel continued to claim the petitioner's eligibility for her receipt of a major, internationally recognized award, as well as the petitioner's eligibility for the awards criterion, the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h) (3)(ii), and the judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv). However, in the director's decision, she only discussed the petitioner's eligibility for the one-time achievement and the awards criterion and determined that no further documentation was submitted for any of the other criteria including the membership criterion and the judging criterion. Although the petitioner does not contest the decision of the director for these criteria, the AAO will review the record of proceeding to determine if the petitioner meets the plain language of the regulation at 8 C.F.R. §§ 204.5(h)(3)(ii) and (iv). See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff’d, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts appellate review on a de novo basis).

* * * * *In the director's decision dismissing the petitioner's motion, she stated that "[t]he fact that the petitioner has trained young dancers is notable, but not considered as evidence in support of the petition as the petitioner is seeking permanent residence as a ballroom dancer and not a trainer or coach." On appeal, the petitioner claims that ''the evidence ... should as well be


reviewed as an extraordinary skill level, given that only a person with such extraordinary ability can produce champions for USA at such young age and such short time span."

The statute and regulations require the petitioner's national or international acclaim to be sustained and that she seeks to continue work in his area of expertise in the United States. See sections 203(b)(l)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1153(b)(l)(A)(i) and (ii), and 8 C.F.R. §§ 204.5(h)(3) and (5). While a ballroom dancer or competitor and ballroom instructor or coach share knowledge of the sport, the two rely on very different sets of basic skills. Thus, ballroom competition and ballroom instruction are not the same area of expertise. This interpretation has been upheld in federal court. In Lee v. INS., 237 F. Supp. 2d 914 (N.D. Ill. 2002),…

There is an O-1 case that could have implications in a case like this one. The O-1 being about “DanceSport”.

SEE: http://www.slideshare.net/BigJoe5/aao-o1-dancesport-remand-aug-012011

Apr022012_01B2203.pdf Appeal Dismissed

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics. [Fencing “coach” or has-been competitor?]

This case was posted earlier than most of the others in Sept./Oct. 2012 while the vast majority were posted in June/July 2013, seemingly all at once. This case was critiqued and written about.

SEE: http://www.slideshare.net/BigJoe5/uscis-response-to-cis-ombudsman-on-kazrian-analysis

Apr022012_04B2203.pdf Appeal Rejected

DISCUSSION: The director, Texas Service Center, denied the employment-based immigrant visa petition on November 10, 2009. The Administrative Appeals Office (AAO) dismissed the


petitioner's appeal of the director's adverse decision On May 9, 2011. On June 10, 2011, the petitioner filed a second appeal with the AAO. The appeal will be rejected.

The petitioner, who is also the beneficiary, seeks classification as an "alien of extraordinary ability" in the athletics, specifically, as a wrestler, pursuant to section 203(b)(1)(A) of the Immigration and NationalityAct (the Act or INA), 8 U.S.C. § 1153(b)(1)(A).


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a principal pharmaceutical scientist [in the sciences]. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

Claims affiliation with a National Science Foundation Program.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

* * * * *This petition, filed on March 15, 2010, seeks to classify the petitioner as an alien with extraordinary ability as a professional musician and composer.

* * * * *There is no evidence showing that the petitioner's music recordings and performances have significantly influenced or impacted his field, or otherwise equate to original contributions of major significance in the field. The AAO notes that the


regulations include a separate criterion for "commercial successes in the performing arts" at 8 C.F.R. § 204.5(h)(3)(x). Here it should be emphasized that the regulatory criteria are separate and distinct from one another. Because separate criteria exist for commercial successes in the performing arts and original contributions of major significance, USCIS clearly does not view these criteria as being interchangeable. To hold otherwise would render meaningless the statutory requirement for extensive evidence or the regulatory requirement that a petitioner meet at least three separate criteria. The AAO will fully address the petitioner's musical recordings and performances under the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(x).


Pages are missing from this decision relating to a "Latin Dance Instructor/Choreographer."


This appears to be the complete version of the above decision.

In the director's decision, she found that the petitioner established eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i). However, the director determined that the petitioner failed to establish eligibility for the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv), the artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204. 5 (h)(3)(viii), and the commercial successes criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). Moreover, the director indicated that the petitioner failed to submit any evidence relating to the original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), the scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(vi), and the high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix). On appeal, counsel specifically requests the AAO to review the


director's decision regarding the published material criterion, the judging criterion, and the leading or critical role criterion. Accordingly, the AAO considers the other previously claimed criteria to be abandoned and will not further discuss them on appeal. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO).


On appeal, counsel states:

We ask the AAO to re-evaluate all the evidence submitted demonstrating that the nexus between [the petitioner's] extraordinary acclaim as a Dancer/Performer supports her a finding of extraordinary ability as an Instructor/Coach on a totality of the evidence including her instruction of students who have competed and won at the national level.

Apr062012_01B2203.pdf Summarily Dismissed

Complicated case which relates to several parallel cases involving fraud on a large scale which were all filed by the same person who was convicted for similar acts. A request to consolidate cases across categories was denied. Must read for yourself.

Apr102012_01B2203.pdf Appeal Rejected

This is a second appeal which is not allowed and which cannot be deemed a Motion as it does not the Motion criteria.

Apr112012_01B2203.pdf Rejected as Untimely

Received 117 days after the decision was issued.


Apr122012_01B2203.pdf Appeal [Summarily] Dismissed

No argument or evidence.

Apr122012_02B2203.pdf Appeal Sustained

In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given evidentiary criterion.FN1 With respect to the criteria at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted to meet those two criteria, those concerns should have been raised in a subsequent "final merits determination." Id.

The court stated that the AAO's evaluation rested on an improper understanding of the regulations. Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the corollary to this procedure:

If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the [ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. § 1153(b )(1 )(A)(i).


Id. at 1119.__________ FN1 Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi).

Above is a conclusory decision that lacks ANY discussion.

Apr182012_01B2203.pdf Approval Withdrawn/Overturned

on Certification; Petition Denied

DISCUSSION: The Director, Texas Service Center, approved the immigrant visa petition and certified the decision to the Administrative Appeals Office (AAO) for review. The record of proceeding does not support approval of the petition. Therefore, the AAO will withdraw the director's decision and the petition will be denied.

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. FN1 The director determined that the petitioner had established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim. In accordance with the regulation at 8 C.F.R. § 103.4(a)(2), the petitioner was afforded 30 days in which to submit a brief to the AAO.

* * * * *Counsel asserts that the petitioner meets the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i) - (iv), (vii), (viii), and (x). For the reasons discussed below, the AAO will withdraw the director's decision and deny the petition.--------------- FN1 According to information on the Form I-140, Immigrant Petition for Alien Worker, the petitioner was last admitted to the United States on January 3, 2011 as an F-I nonimmigrant student.


* * * * *This petition, filed on July 18, 2011, seeks to classify the petitioner as an alien with extraordinary ability as a filmmaker. The petitioner has submitted documentation pertaining to the following categories of evidence under 8 C.F.R. § 204.5(h)(3). FN3---------------- FN3 The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this decision.

Apr192012_01B2203.pdf Rejected as Improperly Filed

I-290B filed by BENEFICIARY’S ATTORNEY rather than PETIONER or PETITIONER’S ATTORNEY.

Apr192012_02B2203.pdf Appeal Summarily Dismissed

No argument or evidence offered for wrestling coach.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability as a farrier. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

A farrier is “a craftsman who trims horses’ hooves” it is unclear which category this would fit into, if any. It should be an H2-B.

Apr192012_04B2203.pdf Summarily Dismissed

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as a boxer. [in athletics]


No specific challenges to findings of law or facts.


No brief sent as indicated after six months.


No argument or evidence offered. No brief sent as indicated after six months. Nothing but a bunch of whining.


No argument or evidence offered. No brief sent as indicated after six months. Nothing but a bunch of whining.


A National Science Foundation case in the field of operations research where the petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence.


DISCUSSION: The director, Texas Service Center, denied the employment-based immigrant visa petition on October 20, 2010. The petitioner, who is also the beneficiary, appealed the decision with the Administrative Appeals Office (AAO) on November 5, 2010. The appeal will be dismissed.

The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, specifically, in the field of infectious diseases and microbiology, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined that the petitioner has not


established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

Apr192012_10B2203.pdf Appeal Rejected as Untimely Filed

The record indicates that the service center director issued the decision on October 18, 2010. It is noted that the service center director properly gave notice to the petitioner that it had 33 days to file the appeal. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit. See Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). Even if the appeal was delayed by the overnight delivery service, the error would not warrant special consideration of the appeal. Id

The petitioner attempted to file the appeal on November 16, 2010 and December 10, 2010, but the appeal was not accepted by the service center initially because it had not been properly signed and subsequently because it did not include the correct filing fee. Appeals that are not properly signed or that are submitted with the wrong fee do not retain a filing date. See 8 C.F.R. § 103.2(a)(7)(i).

Although the petitioner dated the Form I-290B November 12, 2010, it was not received by the service center with the proper signature and the correct fee until December 27, 2010, or 70 days after the decision was issued. Accordingly, the appeal was untimely filed.


The petitioner seeks classification as an "alien of extraordinary ability" in the field of news reporting, pursuant to section 203(b )(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.


* * * * *On appeal, counsel submitted a brief and reference letters from (1) [REDACTED], the sales and product manager, International Sales and Marketing, of DPA Global Media Service in Hamburg, Germany, (2) [REDACTED], Owner of Snapper Media, and (3) REDACTED], [Co-Owner and Chief Executive Officer of Splash News and Picture Agency (hereinafter "Splash"), the petitioner's employer since 1998. In his brief filed in support of the instant appeal, counsel asserted that the director erroneously found that the petitioner does not meet the original contributions of major significance criterion under 8 C.F.R. § 204.5(h) (3)(v), the display at artistic exhibitions or showcases criterion under 8 C.F.R. § 204.5(h)(3)(vii), and the commercial successes in the performing arts criterion under 8 C.F.R. § 204.5(h)(3)(x). For the reasons discussed below, the AAO finds that the petitioner has not established her eligibility for the exclusive classification sought. Specifically, the AAO finds that the petitioner meets none of the ten regulatory criteria under 8 C.F.R. § 204.5(h)(3). As such, the AAO finds that the petitioner has not demonstrated that she is one of the small percentage who are at the very top of the field and she has not shown sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). Accordingly, the AAO must dismiss the petitioner's appeal.

I DON’T THINK THIS IS THE CORRECT CATEGORY FOR THE PARTICULAR OCCUPATION. PERHAPS HE COULD BE BBG SPONSORED AS A SPECIAL IMMIGRANT (EB-4).

Apr202012_02B2203.pdf Rejected as Improperly Filed

There were problems with the Form G-28.

Apr202012_03B2203.pdf Rejected as Untimely Filed

Submitted after four months post-decision. Apr202012_04B2203.pdf Rejected as Untimely Filed

Submitted 42 days after issuance of the decision.


Although the initial denial was not wholly accurate, the appeal didn’t even try to address the item that were cited as Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page

grounds for denial. If it had then AAO might have remanded for further processing.


No argument or evidence submitted, only some incoherent babble on the I-290B.

Apr202012_08B2203.pdf Appeal Rejected as Improperly Filed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO on a second appeal. The appeal will be rejected.

The AAO dismissed the petitioner's appeal on May 23, 2011. On July 15, 2011, counsel submitted Form I-290B, Notice of Appeal or Motion, and marked box A in Part 2 indicating that she was "filing an appeal [emphasis added]." However, the AAO does not exercise appellate jurisdiction over its own decisions. The AAO exercises appellate jurisdiction over only the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1 (effective March 1, 2003). Accordingly, the appeal is not properly within the AAO's jurisdiction.

It is noted that while counsel indicated in her cover letter that she was filing a motion to reconsider, there is no indication that counsel's appeal meets the requirements of a motion to reconsider. In order to properly file a motion to reconsider, the regulation at 8 C.F.R. § 103.5(a)(1)(i) provides that the petitioner must file the motion within 30 days of the decision. If the decision was mailed, the motion must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R.§ 103.2(a)(7)(i). The regulation at 8 C.F.R. § 1.1(h) explains that when the last day of a period falls on a Saturday, Sunday, or legal holiday, the period shall run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

Counsel attempted to file the appeal on June 20, 2011, but the


appeal was not accepted by the service center initially because counsel failed to complete Part 2 of the form. Specifically, counsel failed to indicate the reason for filing Form I-290B. Counsel submitted a completed Form I-290B on July 15, 2011, 53 days after the director's decision. A motion that does not meet applicable requirements shall be dismissed. See 8 C.F.R. § 103.5(a)(4). Here, the untimely appeal does not meet the requirements of a motion to reconsider and would have been dismissed in the alternative.

ORDER: The appeal is rejected.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics, specifically, in the field of karate, as both a practitioner and coach, pursuant to section 203(b )(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *

….. AAO finds that the petitioner meets none of the ten regulatory criteria under the regulation at 8 C.F.R. § 204.5(h)(3). As such, the AAO finds that the petitioner, whose most significant accomplishments predate the filing of the petition by 15 or more years, has not demonstrated that he is one of the small percentage who are at the very top of the field and he has not sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). Accordingly, the AAO must dismiss the petitioner's appeal.

Apr232012_03B2203.pdf APPEAL DISMISSED

The petitioner seeks classification as an "alien of extraordinary ability" in athletics, specifically, in the field of karate, as both a practitioner and coach, pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

It looks like the same decision was posted twice.



The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A) as a choir singer, solo artist, and choral conductor.FN1 The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

* * * * *FN1 According to information on the Form 1-140, Immigrant Petition for Alien Worker, the petitioner was last admitted to the United States on October 3, 2009 as a B-2 nonimmigrant visitor for pleasure.

Pages are missing from this decision.


This appears to be a more complete copy of immediate prior decision but redacted differently so read them together.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics as a ski instructor and coach, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *On appeal, the petitioner submits a brief with no new evidence. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.

With the exception of the evidence relating to the 2002 [REDACTED], the petitioner's primary evidence of photographs of trophies and awards, all exhibit at least one of the below


evidentiary defects:

The evidence is distorted masking the recipient's name;

The evidence does not list the petitioner's name on the trophy or the award; or

The evidence is in a foreign language but is not accompanied by the required translation pursuant to 8 C.F.R. § 103.2(b )(3).


The petitioner seeks classification as an "alien of extraordinary ability" in athletics as a ski instructor and coach, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

Am I seeing double? Again?

Apr242012_01B2203.pdf Appeal Rejected as Untimely Filed

Multiple filing errors: no new G-28, fee problem resulted in late filing at 60 days.


A scientist-researcher.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics as a gymnastics coach, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *On appeal, the petitioner submits a brief with documentary


evidence. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established her eligibility for the classification sought.

* * * * *The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence.


One of the horse groomers.

In his decision denying the petition, the director found that petitioner failed to demonstrate that the beneficiary meets at least three of the categories of evidence at 8 C.F.R. § 204.5(h)(3). On appeal, counsel does not challenge the director's finding in that regard. Instead, counsel asserts that the petitioner submitted comparable evidence of the beneficiary's eligibility pursuant to the regulation at 8 C.F.R. § 204.5(h)( 4). Counsel requests oral argument "so that the AAO views the instant case(s) in a comprehensive light." The regulations provide that the requesting party must adequately explain in writing why oral argument is necessary. Furthermore, U.S. Citizenship and Immigration Services (USCIS) has the sole authority to grant or deny a request for oral argument and will grant argument only in cases involving unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § 103.3(b). In this instance, counsel identified no unique factors or issues of law to be resolved. Moreover, the written record of proceedings fully represents the facts and issues in this matter. Consequently, the request for oral argument is denied.

For the reasons discussed below, the AAO will uphold the director's decision.

* * * * *The petitioner's initial evidence consisted solely of a letter written by counsel unsupported by documentary evidence of the beneficiary's specific achievements and recognition in the field. As previously discussed, the director found that the documentation submitted by the petitioner did not establish that the beneficiary meets any of the regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3). On appeal, the petitioner does not contest the director's finding or offer additional arguments pertaining to the regulatory criteria


at 8 C.F.R. § 204.5(h)(3). The AAO, therefore, considers this issue to be abandoned. Sepulveda v. U.S. Atty Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). Thus, the AAO affirms the director's finding that the petitioner has failed to demonstrate that the beneficiary satisfies the antecedent regulatory requirement of three types of evidence.

May012012_01B2203.pdf Appeal Rejected as Improperly

Filed

On appeal, counsel has submitted a brief and additional evidence, some of which was already part of the record. Pursuant to 8 C.F.R. § 292.4(a) as well as the instructions to the Form I-290B, counsel must file a new Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative with any appeal filed on or after March 4, 2010. See 75 Fed. Reg. 5225 (Feb. 2, 2010). Counsel, however, failed to submit a new, updated Form G-28 with the appeal, filed July 26, 2010. On March 21, 2011, the AAO sent a facsimile to counsel's office, requesting counsel to submit an updated Form G-28 within ten calendar days.1 As of the date of this decision, more than a month later, the AAO has not received the requested updated Form G-28. Accordingly, the AAO rejects the instant appeal as improperly filed, under the regulation at 8 C.F.R. § 103.3(a)(2)(v)(A)(2).

In the alternative, the appeal would not succeed on the merits. The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, specifically, in the field of biotechnology, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(1 )(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

May012012_02B2203.pdf Appeal Dismissed


DISCUSSION: The Director, Nebraska Service Center (the director), initially granted the employment-based immigrant visa petition on October 9, 2001. On September 10, 2010, the director issued a notice of intent to revoke the approval of the Immigrant Petition for Alien Worker (Form 1-140) (NOIR). In a Notice of Revocation (NOR), dated October 19, 2010, the director ultimately revoked the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner seeks classification as an "alien of extraordinary ability" in the athletics, specifically, in the sport of field hockey, as both a player and a coach, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 11533(b)(1)(A). In revoking the approval of the petition, the director determined that the petitioner has not provided clear evidence of her intent to continue work in the area of expertise in the United States. See 8 C.F.R. § 204.5(h)(5). The director pointed out in the NOIR that counsel has submitted no evidence regarding the petitioner's continued work in the United States as a field hockey player or coach, other than providing the following statement (grammar as it appears in the original), which is in counsel's brief filed in support of the petition:

[The petitioner] is an excellent candidate for the U.S. Olympic of the Women Hockey field team as a coach also in the track and field which she coached before if her petition is granted, she will be of great support of the athletic field in the United States.


The petitioner seeks classification as an "alien of extraordinary ability" [in athletics] in the field of acrobatic performance, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U .S.C. § 1153(b )(1 )(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

Since the director below erroneously concluded that at least three regulatory criterion had been met (a finding


withdrawn by AAO); AAO felt obligated to re-perform the Final Merits Determination, even though the petition was undeserving of such treatment.


The petitioner seeks classification as an employment -based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability [in athletics] in taekwondo. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

The director below had found that one criterion had been met. AAO withdrew that finding.

May022012_02B2203.pdf Appeal Summarily Dismissed

The petitioner seeks classification as an employment-based immigrant pursuant to section 203 (b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(1 )(A), as an alien of extraordinary ability as a makeup artist. Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute that the petitioner demonstrate "sustained national or international acclaim" and present "extensive documentation" of his or her achievements. See section 203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained national or international acclaim through evidence of a one-time achievement, specifically a major, internationally recognized award. Absent the receipt of such an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) through (x). The petitioner must submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish the basic eligibility requirements.

In the director's decision, the director discussed the Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page

documentary evidence submitted by the petitioner and determined that the petitioner established eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) but did not establish eligibility for the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii) and the original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). The petitioner did not claim eligibility for any of the other categories of evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i)-(x). Moreover, the director conducted a final merits determination in accordance with Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) and determined that the petitioner failed to demonstrate a (1) "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the [ir] field of endeavor," 8 C.F.R. § 204.5(h) (2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." See section 203 (b)(1 )(A)(i) of the Act, 8 U.S.C. § 1153(b)(1) (A)(i), and 8 C.F.R. § 204.5(h)(3).

* * * * *The I-290B indicated a brief would be submitted but after 15 months, nothing was received.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim.

* * * * *On appeal, counsel asserts that the petitioner meets at least three of the ten regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of his extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). For the reasons discussed below, the AAO will uphold the director's decision.


* * * * *This petition, filed on October 18, 2010, seeks to classify the petitioner as an alien with extraordinary ability as a medical doctor specializing in nephrology and kidney transplantation.


This appears to be a repeat posting of immediately prior decision.


Research Scientist in Microbiology

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

On appeal, the petitioner asserts that she is "one of the small percentage who has risen to the top of the field." For the reasons discussed below, the AAO will uphold the director's determination that the petitioner has not established her eligibility for the exclusive classification sought.

Specifically, the AAO acknowledges the director's conclusion that when the submitted evidence is simply counted, the petitioner has submitted qualifying evidence that meets the plain language of three of the categories of evidence as required by the regulation at 8 C.F.R. § 204.5(h)(3). These criteria are judging the work of others, original contributions of major significance, and authorship of scholarly articles pursuant to 8 C.F.R. §§ 204.5(h)(3)(iv), (v), and (vi). As explained in the AAO's final merits determination, however, much of the evidence that technically qualifies under some of those criteria reflects routine duties or accomplishments in the field that do not compare with the accomplishments of the most experienced and renowned members of the field. Thus, such evidence is not consistent with a finding that the petitioner enjoys sustained national or international acclaim at the very top of the field. As will be


discussed further in the final merits determination, while the petitioner notes the caliber of the references who support the petition, their accomplishments, appointments as a dean, director or professor, editorial positions, and publication records only reinforce the AAO's conclusion that the top of the petitioner's field is far higher than the level she has achieved. (footnote omitted)

You need to read this one for yourself.

May042012_01B2203.pdf Appeal Sustained

On appeal, counsel asserts that the petitioner meets at least three of the categories of evidence at 8 C.F.R. §§ 204.5(h)(3). For the reasons discussed below, the AAO finds that the petitioner meets the statutory and regulatory requirements for classification as an alien of extraordinary ability.

* * * * *II. Analysis

A. Evidentiary Criteria

This petition, filed on March 18, 2011, seeks to classify the petitioner as an alien with extraordinary ability as a creative director specializing in television advertising. Upon review of the petitioner's appeal and the documentation of record, the AAO finds that the petitioner's evidence meets the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i), (vii), and (viii). Accordingly, the petitioner meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).


The AAO will next conduct a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Section 203(b)(1)(A)


of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the present matter, the petitioner has submitted extensive documentation of his achievements as a creative director and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained national acclaim and that his achievements have been recognized in the field of expertise. Moreover, the submitted documentation shows that the petitioner is among that small percentage who have risen to the very top of the field of endeavor.


Molecular or Cell Biology Scientific Researcher


In the sciences…..

II. ANALYSIS

D. Burden of Proof

Counsel also asserted that the basis of the director's adverse decision seemed to be that the petitioner did not claim under which criteria he qualified for the requested classification. However, a review of the director's decision reveals that the director was referencing the petitioner's response to the RFE rather than claiming that the petitioner failed to claim any criteria throughout the entire administrative process. The director's decision first references the March 5, 2010, RFE, then notes the petitioner's response to the RFE dated May 18, 2010. Subsequently, the director states, "In his response [to the RFE] the petitioner did not contend that he met any of the remaining eight criteria. USCIS again reviewed his initial evidence regarding the first four criteria [8 CF.R. § 204.5(h)(3)(iv) - (v)], but it cannot find that the evidence establishes that the petitioner met any of these four (and he has made no contention of having met any of the last four criteria in the list [8 CF.R. § 204.5(h)(3) (vii) - (x)])." The director's decision continues, discussing the individual criteria that the petitioner claimed within the initial petition filing brief. The director also


addressed these criteria within her RFE.

Counsel subsequently stated, "Indeed, it is not up to the petitioner to claim criteria, and his not claiming them is not a reason for denial. The evidence was submitted, and the examiner should have decided on the basis of the law WHICH criteria [the] petitioner met." (Capitalization in the original). Contrary to counsel's contention, the burden of demonstrating eligibility lies with the petitioner. Section 291 of the Act, 8 U.S.C § 1361. This burden also includes the petitioner's responsibility of identifying under which criteria the director should consider his evidence. A petitioner must establish the elements for the approval of the petition at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12). The burden does not shift from the petitioner to the director after the petitioner provides evidence allegedly demonstrating his eligibility. If it is the petitioner's contention that he meets a particular criterion, it remains his responsibility to specifically identify under which criterion USCIS should consider the evidence. The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 CF.R. §§ 103.2(b )(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 CF.R. § 103.2(b)(14). He failed to provide such a statement or argument in this regard in response to the director's RFE. The burden is on the petitioner to establish eligibility. It is not USCIS' s responsibility to infer or second-guess the intended criteria.

May142012_01B2203.pdf Motion Dismissed

The AAO issued the decision summarily dismissing the petitioner's appeal on December 1, 2010. It is noted that the AAO properly gave notice to the petitioner that "[a]ll motions must be submitted to the office that originally decided your case by filing a Form I-290B" (Notice of Appeal or Motion) and that "any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen." Counsel, however, incorrectly submitted the petitioner's Form I-290B to the AAO on December 29, 2010. The AAO returned the Form I-290B with fee to counsel based on his incorrect submission of the motion to the AAO. Counsel submitted the Form I-290B to the Texas Service Center on


January 4, 2011, 34 days after the decision was issued. Accordingly, the motion was untimely filed.

May142012_02B2203.pdf Appeal Rejected as Untimely Filed

The record indicates that the service center director issued the decision on January 5, 2011. It is noted that the service center director properly gave notice to the petitioner that it had 30 days to file the appeal, as the denial was sent via facsimile. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit.

Although counsel dated the Form I-290B February 3, 2011, it was not received by the service center until February 7, 2011, or 33 days after the decision was issued. Accordingly, the appeal was untimely filed.

The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Texas Service Center. See 8 C.F.R. § 103.5(a)(1)(ii). The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO.

As the appeal was untimely filed, the appeal must be rejected.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

Specifically, the AAO acknowledges the director's conclusion that when the submitted evidence is simply counted, the


petitioner has submitted qualifying evidence that meets the plain language of three of the categories of evidence as required by the regulation at 8 C.F.R. § 204.5(h)(3). These criteria are judging the work of others, original contributions of major significance, and authorship of scholarly articles pursuant to 8 C.F.R. §§ 204.5(h)(3)(iv), (v), and (vi). As explained in the AAO's final merits determination, however, much of the evidence that technically qualifies under some of those criteria reflects routine duties or accomplishments in the field that do not compare with the accomplishments of the most experienced and renowned members of the field. Thus, such evidence is not consistent with a finding that the petitioner enjoys sustained national or international acclaim at the very top of the field. As will be discussed further in the final merits determination, while the petitioner notes the caliber of the references who support the petition, their accomplishments, appointments as a director or professor, editorial positions, and publication records only reinforce the AAO's conclusion that the top of the petitioner's field is far higher than the level she has achieved.


See bottom of page 3 through middle of page 5 for a blow-by-blow defense of the Kazarian two-step analysis that USCIS has adopted.


The petitioner seeks classification as an "alien of extraordinary ability" [in the arts] in the field of stage management and creation, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A). The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *II. ANALYSIS

A. The Director's Request for Evidence

On appeal, counsel contends that the director erred in not issuing a second Request for Evidence or a Notice of Intent to


Deny, and erred in denying the petitioner "an opportunity to respond to or rebut the [director's] argument with respect to [the petitioner's] qualifications as an alien with extraordinary ability in his field." The record shows that the director issued a Request for Evidence on September 29, 2010, noting repeatedly that "no evidence has been submitted with the petition whatever." Counsel contends that evidence was submitted along with the initial filing of the petition, but at the time the director issued the Request for Evidence, the director was unable to locate the evidence.FN2 Counsel then submitted photocopies of the original evidence, and requested the director to issue a second Request for Evidence before denying the petition.

Counsel's position that the director erred, however, is not supported by any legal authority. Specifically, the regulation at 8 C.F.R. § 103.2(b)(l), provides that "[a]n applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request .... " In other words, the petitioner has the burden of submitting all necessary evidence showing eligibility when filing the petition, and the director does not have the burden of pointing out any deficiencies in the evidence in a Request for Evidence. This is further supported by the regulation at 8 C.P.R. § 103.2(b)(8)(ii), which provides that "[i]f all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, [the director] in [his] discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by [the director]." Id. (emphasis added). Thus, it was within the director's discretion to deny the petition without affording the petitioner an opportunity to supplement his initial petition filing. Accordingly, counsel should have filed all necessary support evidence at the time she filed the petition in September 2010, and her failure to do so does not mean that the director must issue a Request for Evidence, requesting the missing evidence.

Moreover, a petitioner may submit anything in support of an appeal, including additional evidence, which counsel has done in this case. As discussed below, the AAO, conducting appellate review on a de novo basis, has reviewed all evidence in the record, including evidence previously before the director and additional evidence filed in support of the instant appeal. See Spencer Enterprises, Inc., 229 P. Supp. 2d at 1043; Soltane, 381


P.3d at 145-46.______________

FN2 The AAO has the entire record of proceedings when considering the instant appeal, including original evidence counsel filed along with the initial filing of the petition, photocopied evidence counsel filed in response to the director's September 29, 2010 Request for Evidence, and evidence counsel filed in support of the instant appeal.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *The petitioner's priority date established by the petition's filing date is October 15, 2008. On May 28, 2010, the director served the petitioner with a notice of intent to deny (NOID). After receiving the petitioner's response to the NOID, the director issued his decision on August 10, 2010. On appeal, the petitioner submits a brief with new evidence. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.


A. Previous Nonimmigrant 0-1 Approval

While U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude users from denying an immigrant visa petition based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS


spends less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an extension of the original visa based on a reassessment of petitioner's qualifications).

The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 J&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).

Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. Glara Fashion, Inc. v. Holder, 11 CIY. 889 PAE, 2012 WL 352309 *7 (S.D.N.Y. Feb. 3, 2012); Royal Siam v. Chertoff; 484 F.3d 139, 148 (1st Cir.2007); Tapis Int'l v. INS, 94 F.Supp.2d 172, 177 (D.Mass.200)) (Dkt.10); Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.O. 51 (2001).

May152012_01B2203.pdf Motion Dismissed

Notwithstanding the above noted fundamental defect in counsel's motion, the AAO will review the merits of the motion. The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. [karate or martial arts]_________________


FN1 As the petitioner did not raise an[y] issue[s] relating to the AAO's October 4, 2010 findings on the display of work at artistic exhibitions or showcases criterion under 8 C.F.R. § 204.5(h)(3)(vii) in the instant motion, the AAO considers it abandoned. See Sepulveda v. United States Att 'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO).


The petitioner, who has been coaching for several years and seeks to continue coaching, has failed to satisfy the antecedent regulatory requirement of three types of evidence as a [swimming] coach.

Pages are missing from above decision.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics, ….. [track and field]

On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, the AAO upholds the director's ultimate conclusion that the petitioner has not established his eligibility for the exclusive classification sought. In addition, as noted by the director in his denial, the evidence submitted does not establish that the petitioner is "coming to the United States to work as an athlete," as required by 8 C.F.R. § 204.5(h)(5).

May172012_01B2203.pdf Rejected as Untimely Filed


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an


alien of extraordinary as a ballroom dance trainer. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of her sustained national or international acclaim. [in the arts]

While the record demonstrates that the petitioner intends to continue working as a dance trainer, there is no evidence indicating that she intends to compete as ballroom dancer in the United States. The AAO acknowledges the possibility of an alien's extraordinary claim in more than one field, such as teaching and competitive dancing, but the petitioner must demonstrate "by clear evidence that the alien is coming to the United States to continue work in the area of expertise." See 8 C.F.R. § 204.5(h)(5). In this case, there is no documentary evidence establishing that the petitioner intends to continue working in the United States as a competitive ballroom dancer. Accordingly, the petitioner must satisfy the statutory requirement at section 203(b )(1 )(A)(i) of the Act as well as the regulations at 8 C.F.R. §§ 204.5(h)(2) and (3) through her achievements as a dance teacher and trainer.

USCIS recognizes that there exists a nexus between competing and teaching in a given sport. To assume that every extraordinary athlete's area of expertise includes teaching, however, would be too speculative. To resolve this issue, a balanced approach is appropriate when reviewing the evidence of record. Specifically, in a case where an alien has achieved recent national or international acclaim as a competitive athlete and has sustained that acclaim in training top competitors at a national level, the AAO can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that the AAO can conclude that conducting dance training is within the alien's area of expertise. However, as the petitioner in the present matter has had an extended period of time to establish her reputation as a dance trainer beyond the years in which she competed as ballroom dancer in 1980s, the petitioner must demonstrate her extraordinary ability as a dance trainer.




The AAO notes here that in Part 5 of Form 1-140, Immigrant Petition for Alien Worker, the petitioner listed his occupation as a "Professional Coach." In addition, in Part 6, the petitioner listed his proposed job title as "Kickboxing Coach." Further, the petitioner submitted a personal statement detailing his plans to work as a kickboxing coach and instructor in the United States. Thus, the record reflects that the petitioner is seeking classification as an alien of extraordinary ability as an instructor or coach rather than as a competitor. Even though the petitioner submitted documentation regarding his involvement in earlier tournaments as a competitor, the record reflects the petitioner's intent to work in the United States as a coach.

* * * * *B. Letters of Reference

The petitioner submitted a number of letters of reference from colleagues, students and parents of students. While recommendation letters can provide useful information about an alien's qualifications or help in assigning weight to certain evidence, such letters are not a substitute for objective evidence of the alien's achievements and recognition as required by the statute and regulations. The letters primarily contain bare assertions of acclaim and compliments on the petitioner's coaching. The nonexistence of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). Further, the classification sought requires "extensive documentation" of sustained national or international acclaim. See section 203(b )(1 )(A)(i) of the Act, 8 U .S.C. § 1153(b )(1 )(A)(i), and 8 C.F.R. § 204.5(h)(3). The commentary for the proposed regulations implementing the statute provides that the "intent of Congress that a very high standard be set for aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of achievements and recognition is of far greater probative value than opinion statements.

Since these letters do not directly address any of the criterion listed at 8 C.F.R. § 204.5(h)(3)(i)-(x), the AAO will not consider them here.

C. Summary



IV. CONCLUSION

The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien has achieved sustained national or international acclaim and is one of the small percentage who has risen to the very top of the field of endeavor.

Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, the AAO need not explain that conclusion in a final merits determination.4 Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. at 1122.

The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition may not be approved.______________ FN4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).


May242012_01B2203.pdf Appeal Dismised

The petitioner seeks classification as an "alien of extraordinary ability" in athletics, …. as a basketball player.

This decision, like so many others is indicative of the changed style for AAO Decisions in this category. Much effort is expended parsing the evidence to determine if it may be counted or not and then, having found that three criteria have NOT been met, dispenses with a Kazarian Final Merits Determination (FMD). It also reserves the right to perform such FMD in the event that a court should find that AAO once again conflated issues and discounted evidence that should have counted thereby avoiding having its decision labeled “arbitrary and capricious” by a court upon APA review under 5 USC § 706.


On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). Furthermore, counsel claims in his brief that the petitioner's documentary evidence should be considered as comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the following regulation categories. The ten categories in the regulations are designed to cover different areas; not every criterion will apply to every occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The AAO further acknowledges that the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]f the above standards do not readily apply to the [petitioner's] occupation, the petitioner may submit comparable evidence to establish the [petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not readily applicable to his occupation and how the


evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. § 204.5(h)(3) (i)-(x).

In counsel's brief, he does not explain why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not applicable to the petitioner's occupation. Instead, counsel simply claims that the regulations allow for the submission of comparable evidence. However, the regulatory language precludes the consideration of comparable evidence in this case, as there is no indication that eligibility for visa preference in the petitioner's occupation as a track and field assistant coach cannot be established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, counsel discusses evidence in his brief that specifically addresses four of the ten criteria at 8 C.F.R. § 204.5(h)(3) that relates to the petitioner's occupation. Further, the director found that the petitioner met at least one of the regulatory criteria. An inability to meet a criterion, however, is not necessarily evidence that the criterion does not apply to the petitioner's occupation. Moreover, although counsel failed to claim these additional criteria, the AAO finds that a track and field assistant coach could have published material about him pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) and could command a high salary pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix). Counsel provided no documentation as to why these provisions of the regulation would not be appropriate to the profession of a track and field assistant coach. Where an alien is simply unable to meet or submit documentary evidence of three of these criteria, the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. In the AAO's analysis of the evidentiary criteria below when comparable evidence is claimed, the AAO will determine whether the documentary evidence meets the requirements of the plain language of the regulation.


The petitioner seeks classification as an "alien of extraordinary ability" in business, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A) as a Training Manager and Territory Sales Manager.FN1 The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international


acclaim._________

FN1 The record reflects that the alien filed the Form 1-140, Immigrant Petition for Alien Worker, with the Nebraska Service Center on February 23, 2010, listing [REDACTED] as the petitioner under Part 1 of the form. Part 8 of the Form 1-140, however, was signed by the alien. The regulation at 8 C.F.R. § 103.2(a)(2) states: "An applicant or petitioner must sign his or her benefit request." Therefore, the alien is the petitioner in this matter.

The petitioner failed to satisfy at least three criteria.


The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in athletics as a squash professional, pursuant to section 203(b) (1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim on behalf of the beneficiary necessary to qualify for classification as an alien of extraordinary ability.


A. Prior O-1

While USCIS has approved at least one O-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition based on a different, if similarly phrased, classification. It must be noted that many I-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989).

The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v.


Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).

Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director has approved a nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. LA.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).

Failed to meet three out of ten criteria.

Jul022012_01B2203.pdf 2nd Motion Dismissed

DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition on August 27, 200H. The Administrative Appeals Office (AAO) upheld the director's decision, and dismissed the appeal on November 9, 2009. The petitioner filed a motion to reopen the AAO appellate dismissal, which was dismissed on February 10, 2011. The matter is now before the AAO on a second motion to reopen. The motion will be dismissed.

Jul022012_02B2203.pdf Appeal [Summarily] Dismissed

On appeal, the petitioner, through counsel, fails to specifically address the reasons stated for the denial and to identify any erroneous conclusion of law or statement of fact on the part of the director. Instead, the counsel merely provides a historical account of the petitioner's previously claimed achievements. Counsel lists the regulatory requirements that, in his opinion, the AAO should presume that the petitioner meets, but fails to provide any meaningful guidance to the AAO regarding what evidence or what determination of the director is in contention.

Jul022012_03B2203.pdf Appeal Dismissed

In athletics….taekwondo.

…. Vague, solicited letters that do not specifically identify contributions or provide specific examples of how those contributions influenced the field are insufficient.


Jul052012_01B2203.pdf Appeal Rejected as Improperly Filed

Improper G-28.


DISCUSSION: The Director, Texas Service Center, initially denied the employment-based immigrant visa petition on November 18, 2008, reopened the matter on U.S. Citizenship and Immigration Services (USCIS) motion on April 23, 2009, and ultimately denied the petition in a final decision dated March 31, 2011. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner seeks classification as an "alien of extraordinary ability" in the arts [as a singer], pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

The evidence failed to demonstrate that the self-petitioner met at least three criteria. No Final Merits Determination required.

III. INTENT TO CONTINUE TO WORK IN THE AREA OF EXPERTISE

The AAO notes that although required by 8 C.F.R. § 103.2(a)(1), the beneficiary failed to complete any portion of Part 6 of the Form 1-140, which requires the petitioner to list "Basic information about the proposed employment." See also Instructions for 1-140, Immigrant Petition for Alien Worker, (rev. July 30, 2(07), General Instructions, Step 1, line 3. The concurrently filed Form G-325A states that the petitioner has been unemployed since June 2007. This is an employment-based classification that requires that the alien seek to enter the


United States to continue working in her area of expertise. Section 203(b)(1)(A)(ii) of the Act. It is "by virtue of such work" that aliens under this classification will substantially benefit prospectively the United States as envisioned under section 203(b)(l)(A)(iii) of the Act. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). Congress did not intend for aliens of extraordinary ability to immigrate to the United States and remain idle. 56 Fed. Reg. 30703, 30704 (July 5, 1991). While neither the statute nor the regulations specify that the employment must be full-time, minimal hours of employment as a hobby or incidental to the alien's primary source of income does not substantially benefit prospectively the United States.

The petitioner has not provided sufficient detail or evidence regarding her intentions to continue to work in the United States. This is an employment-based visa classification. Beyond a few singing performances between 2007 and 2010, the petitioner has not offered any evidence that her singing career will continue on anything more than an incidental basis.

For these reasons, the AAO concurs with the director's finding that the petitioner has not submitted qualifying evidence under 8 C.F.R. § 204.5(h)(5).


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability [in the arts] as a photographer. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of her sustained national or international acclaim.

The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence.

No Final Merits Determination is required; none was done.

Jul122012_01B2203.pdf Appeal Rejected as Untimely FiledActually dated July 17, 2012.


The regulation at C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case, the director. See 8 C.F.R. § 103.5(a)(1)(ii). The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO.

Jul122012_02B2203.pdf Appeal Rejected as Improperly Filed

The instant appeal has not been filed by the petitioner, nor by any entity with legal standing in the proceeding, but rather by the beneficiary. Therefore, the AAO finds that appeal has not been properly filed, and must be rejected.

Jul132012_01B2203.pdf Appeal DismissedActually dated December 21, 2011

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in business [as a talent agent and general manager of a talent agency]. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *The AAO concurs with the director's determination that the petitioner has failed to demonstrate her receipt of a major, internationally recognized award, or that she meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).


The AAO will next conduct a final merits determination ………

Jul162012_01B2203.pdf Appeal Rejected as Untimely


Filed

DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition on September 16, 2009. On March 25, 2010 and on January 5, 2011, the director issued Notices of Intent to Revoke (NOIR). In a Notice of Revocation (NOR) dated June 10, 2011, the director ultimately revoked the approval of the petition. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed.

In order to properly file an appeal on a notice of revocation, the regulation at 8 C.F.R. § 205.2(d) provides that the petitioner or the attorney or representative of record must file the complete appeal within 15 days of service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 18 days. See 8 C.F.R. § 103.8(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i).

The record indicates that the service center director issued the decision on June 10, 201 1. It is noted that the service center director properly gave notice to the petitioner that he had 18 days to file the appeal. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit.

Counsel dated the Form 1-2908 July 5, 2011, and it was received by the service center on July 11, 2011, or 31 days after the decision was issued. Accordingly, the appeal was untimely filed.

The regulation at 8 C.F.R. § 103.3(a)(2)(v)(8)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Texas Service Center. See 8 C.F.R. § 103.5(a)(I)(ii). The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO. As the appeal was untimely filed, the appeal must be rejected.

As the appeal was untimely filed, the appeal must be rejected.


ORDER: The appeal is rejected.

Jul312012_01B2203.pdf Appeal Rejected as Untimely Filed

The late appeal did not qualify as a motion.

Aug072012_01B2203.pdfAppeal Dismissed

The petitioner seeks classification for the beneficiary as an "alien of extraordinary ability" in athletics [as a "Martial Arts Practitioner"], pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim of the beneficiary necessary to qualify for classification as an alien of extraordinary ability.

AAO withdrew some of the positive findings of the director who found 3 or more criteria had been met. AAO found that at least 3 criteria had NOT been met. It is because the director performed a Final Merits Determination that AAO did one as well even though it did not have to. Read it for yourself.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics [as a professional Netball Player/Coach], pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

The promised brief and additional evidence were never received after a full year.

II. ANALYSIS

A. Area of Expertise


On Part 6 of the petition, the petitioner indicated that the proposed employment would be as a professional Netball Player/Coach. Counsel's brief accompanying the initial petition and in response to the RFE described the petitioner's achievements both as a competitor and as a coach. An alien must intend to continue to work in her area of expertise. Section 203(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). Performing as competitor and coaching are based on different skillsets. Thus, competitive athletics and coaching are not the same area of expertise. This interpretation has been upheld in Federal Court. In Lee v. Ziglar, 237 F. Supp. 2d 914, 918 (N.D. Ill. 2002), the court stated:

It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as working in the same profession in which one has extraordinary ability, not necessarily in any profession in that field. For example, extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach.

Id. at 918. The court noted a consistent history in this area. The petitioner's coaching achievements occurred in 2001 and 2002. As a result, the petitioner cannot demonstrate sustained acclaim as a coach.Thus, her achievements as a coach will not serve to qualify her for the immigrant classification sought.


The petitioner seeks classification as an "alien of extraordinary ability" in the arts in cinematography, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *The petitioner's priority date established by the petition filing date is November 5, 2010. On November 10, 2010, the director served the petitioner with a request for evidence (RFE). After receiving the petitioner's response to the RFE, the director


issued her decision on December 27, 2010. On appeal, the petitioner submits a brief with additional documentary evidence. For the reasons discussed below, theAAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.

Wow! That was FAST!


The petitioner seeks classification as an "alien of extraordinary ability" in the arts as a calligraphy artist, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *The petitioner's priority date established by the petition filing date is February 23, 2011. On March 8, 2011, the director served the petitioner with a request for evidence (RFE). After receiving the petitioner's response to the RFE, the director issued her decision on May 5, 2011. On appeal, the petitioner submits a brief with new documentary evidence. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the classification sought.


The petitioner seeks classification as an "alien of extraordinary ability" in athletics as a Wushu competitor [a form of Martial Arts], pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C.§ 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *The petitioner's priority date established by the petition filing


date is August 4, 2010. On March 8, 2011, the director served the petitioner with a request for evidence (RFE). After receiving the petitioner's response to the RFE, the director issued her decision on June 23, 2011. On appeal, the petitioner submits a brief with new documentary evidence. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established her eligibility for the classification sought.

C. Summary

The petitioner has not submitted relevant, probative evidence to satisfy the antecedent regulatory requirement of three types of evidence.

III. FINAL MERITS DETERMINATION

Although the petitioner failed to satisfy at least three of the evidentiary criteria and a final merits determination is not required, the director performed this analysis and the AAO concurs with the director's determination. In accordance with the Kazarian opinion, the next step is a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[irj field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20.

Aug092012_03B2203.pdfAppeal Sustained

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in the arts. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and


sustained national or international acclaim.* * * * *

On appeal, counsel asserts that the petitioner meets at least three of the categories of evidence at 8 C.F.R. §§ 204.5(h)(3). For the reasons discussed below, the AAO finds that the petitioner meets the statutory and regulatory requirements for classification as an alien of extraordinary ability.

* * * * *This petition, filed on May 20, 2011, seeks to classify the petitioner as an alien with extraordinary ability as a rock singer and musician. Upon review of the petitioner's appeal and the documentation of record, the AAO finds that the petitioner's evidence meets the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iii), (v), and (x). Accordingly, the petitioner meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3).


The AAO will next conduct a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.

In the present matter, the petitioner has submitted extensive documentation of his achievements as an Israeli rock singer, lyricist, and composer and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained national acclaim and that his achievements have been recognized in the field of expertise. Moreover, the submitted documentation shows that the petitioner is among that small percentage who have risen to the very top of the field of endeavor.


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to section 203(b)(1)(A) of the


Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *On appeal, counsel submits a brief. For the reasons discussed below, the AAO is satisfied that the evidence of record adequately establishes the petitioner's eligibility for the classification.

* * * * *In the present matter, consistent with Matter of Price, 20 I&N Dec. 953 Act. Assoc. Comm'r 1994), the petitioner has submitted extensive documentation of his achievements in the sciences and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained acclaim and that his achievements have been recognized in the field of expertise. The petitioner, who specializes in formal methods research, a subset of Computer Science and Mathematics, has authored numerous scholarly articles in a variety of scientific journals and submitted evidence showing that independent researchers have cited to his work. See Kazarian, 596 F.3d at 1121 (citations may be relevant to the final merits determination of whether an alien is at the very top of his field). In addition, he has judged the work of others in his field. Finally, the petitioner submitted corroborated reference letters from independent experts in the field, detailing his specific contributions and explaining how those contributions have influenced the field at large and are being utilized by others. Thus, the petitioner's achievements are commensurate with sustained national or international acclaim at the very top of his field.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as an acrobat. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of sustained national or international acclaim.

* * * * *On appeal, counsel claims that the petitioner received a one-time achievement and meets at least three of the regulatory


criteria at 8 C.F.R. § 204.5(h)(3).* * * * *



The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in athletics. The director determined that the petitioner had not established the requisite extraordinary ability through extensive documentation and sustained national or international acclaim.

* * * * *The AAO withdraws the director's determination that the petitioner meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). The petitioner has failed to demonstrate that he satisfies the antecedent regulatory requirement of three types of evidence.

* * * * *With regard to the category of evidence at 8 C.F.R. § 204.5(h)(3)(i), the petitioner submitted documentation indicating that he received nationally recognized awards in "Junior " "Amateur”’ and ''Rising Star" levels of ballroom dance competition. For instance, the petitioner placed 2nd in the ES. Open Professional "Rising Star" Competition in September 2009 and 2nd at the Polish Championships in the "Junior" category in February 1999. The AAO cannot conclude that petitioner's awards and results in competitions below the top professional level demonstrate that he ''is one of that small percentage who have risen to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). The petitioner seeks a highly restrictive visa classification, intended for individuals already at the top of their respective field, rather than for "Junior”, “Amateur " or "Rising Star" ballroom dancers progressing toward the top at some unspecified future time. USCIS has long held that even athletes performing at the major league level do not automatically meet the statutory standards for immigrant classification as an alien of "extraordinary ability." Matter of Price, 20 l&N Dec. at 953, 954; 56 Fed. Reg. at 60899. Likewise, it does not follow that a ballroom dancer who has won prizes in "Junior," "Amateur," and "Rising Star" levels of dance


competition should necessarily qualify for approval of an extraordinary ability employment-based immigrant visa petition. While the AAO acknowledges that a district court's decision is not binding precedent, the AAO notes that in Matter of Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated:

[T]he plain reading of the statute suggests that the appropriate field of comparison is not a comparison of Racine's ability with that of all the hockey players at all levels of play: but rather. Racine's ability as a professional hockey player within the NHL This interpretation is consistent with at least one other court in this district. Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99.

Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is reasonable. To find otherwise would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small percentage of individuals that have risen to the very top of their field of endeavor.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability [in the arts] as a film director and writer. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of sustained national or international acclaim.

* * * * *At the time of the original filing of the petition, counsel submitted documentation and indicated that "it is rather difficult to categorize the above list of evidence into clear-cut criteria" but claimed that the petitioner was eligible for the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion


pursuant to the regulation at 8 C.F.R. § 204.5(h)(3), theoriginal contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), the artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), and the commercial successes criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). However, counsel failed to specifically identify which documentation related to the criteria under the regulation at 8 C.F.R. § 204.5(h)(3). It was not apparent from the review of the evidence to which criteria the evidence pertained. The burden is on the petitioner to establish eligibility and not on the director to infer or second-guess the intended criteria.

The director issued a request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8) describing each of the ten criteria under the regulation at 8 C.F.R. § 204.5(h)(3) and indicated that the petitioner failed to submit any documentary evidence regarding the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion, the judging criterion, the scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi), the artistic display criterion, the high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix), and the commercial successes criterion. In addition, the director indicated that the documentary evidence was insufficient to establish eligibility for the published material criterion, the original contributions criterion, and the leading or critical role criterion.

In response to the director's request for additional evidence, counsel submitted additional documentation but failed to identify the intended criteria, as well as identifying which documents, if any, pertained to the specific criteria. Based on the submitted documentation, the director determined in her decision that the petitioner failed to establish eligibility for the published material criterion, the original contributions criterion, and the leading or critical role criterion. Further, the director indicated that the petitioner failed to submit any documentary evidence for the scholarly articles criterion.

On appeal, counsel claims that the director "considered only four of the ten criteria set forth in 8 CFR § 204.5(h)(3), and did not properly apply the submitted evidence to the criteria." However, on appeal, counsel again fails to specifically indicate


which additional criteria the petitioner purportedly meets and how the evidence pertains to those specific criteria. In fact, on appeal, counsel only references the original contributions criterion and the leading or critical role criterion. Once again, the burden is on the petitioner to establish eligibility and not on the AAO to infer or second-guess the intended criteria. If it is counsel's contention that the documentary evidence meets additional and different criteria, he has never explained which criteria they are and how the evidence relates to those criteria. A passing reference without substantive arguments is insufficient to raise that ground on appeal. Desravines v. U.S. Arty. Gen., 343 Fed. Appx. 433, 435 (11* Cir. 2009).

The AAO notes here that in the director's decision regarding the published material criterion, she erroneously but innocently referred to the petitioner's field as "hospital medicine." While counsel raises this issue on appeal, the director referenced the petitioner's occupation as a film director and writer throughout her decision and thoroughly evaluated the petitioner's documentary evidence and concluded that the petitioner failed to submit documentary evidence of the petitioner's sustained national or international acclaim as a film director and writer. Notwithstanding, it would serve no useful purpose to remand the case simply for the director to correct her erroneous and innocent reference to the petitioner's field.

The above is a perfect example of failure to properly prepare a case and especially of very poor presentation of evidence. This is what not to do.


The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability [in business] as an assistant director of food and beverage. The director determined that the petitioner had not established the beneficiary's requisite extraordinary ability and failed to submit extensive documentation of sustained national or international acclaim.* * * * *It is noted that at the initial filing of Form I-290B, Notice of Appeal of Motion, counsel indicated in Part 2, box A that he was


"filing an appeal" pursuant to the regulation at 8 C.F.R. § 103.3(a). Although in Part 3 of the form, as well as the accompanying cover letter and brief, counsel refers to a motion to reopen and a motion to reconsider pursuant to the regulation at 8 C.F.R. § 103.5(a). If counsel intended to file a motion to reopen and a motion to reconsider, he should have checked box F in Part 2 of Form 1-290B. As counsel filed Form 1-290B requesting an appeal of the director's decision, the AAO will treat it as an appeal. The burden is not on the AAO to infer or second-guess counsel's filing intentions. It is further noted that the regulation at 8 C.F.R. § 103.3(a)(2)(iii) provides that "[t]he reviewing official shall decide whether or not favorable action is warranted and the regulation at 8 C.F.R. § 103.5(a)(8) provides that 1t]he official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion." As the director determined that favorable action could not be taken on the appeal and she could not therefore treat the appeal as a motion, she forwarded the appeal to the AAO.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability [in education] as a postdoctoral scholar. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of sustained national or international acclaim.

In the director's decision, he determined that the petitioner failed to establish eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 8 C.F.R, § 204.5(h)(3)(iv), the original contributions criterion pursuant to the regulation at 8 C.F.R.§ 204.5(h)(3)(v), and the scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi). Moreover, the director indicated that the petitioner's occupation did not apply to the artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), and the petitioner failed to claim eligibility for the leading or critical role criterion pursuant to


the regulation at 8 C.F.R. § 204.5(h)(3)(viii), the high salary criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix), and the commercial successes criterion pursuant to the regulation at 8 C.F.R.§ 204.5(h)(3)(x). On appeal, counsel specifically challenges the director's decision regarding the judging criterion, the original contributions criterion, the scholarly articles criterion, and the leading or critical role criterion. Accordingly, the AAO considers the other previously claimed criteria to be abandoned and will not further discuss them on appeal. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 201 I WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 201 l) (the court found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO).

Aug202012_01B2203.pdfAppeal SustainedActually dated Aug. 28, 2012.

The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *In the present matter, consistent with Matter of Price, 20 I&N Dec. 953 Act. Assoc. Comm'r 1994), the petitioner has submitted extensive documentation of his achievements in the sciences and has demonstrated a career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained acclaim and that his achievements have been recognized in the field of expertise. The petitioner, who specializes in plant genetics and breeding, genomics and bioinformatics, has authored numerous scholarly articles in a variety of scientific journals and submitted evidence showing that hundreds of independent researchers have consistently cited to his work. See Kazarian, 596 F.3d at 1121 (citations may be relevant to the final merits determination of whether an alien is at the very top of his field). In addition, he has frequently judged the work of others in his field. While there is no evidence that the petitioner actually served in this role, the record does reveal that the Journal of Plant Genomics invited


the petitioner to serve as Guest Lead Editor for a special issue of his choice.Finally, the petitioner submitted corroborated reference letters from independent experts in the field, detailing his specific contributions and explaining how those contributions have influenced the field at large and are being utilized by others. While the director concluded that the petitioner's awards from the central Chinese government did not meet the requirements of 8 C.F.R. § 204.5(h)(3)(i), the petitioner does meet an additional three criteria and the awards are certainly compatible with a conclusion that the petitioner is at the top of his field. Thus, the petitioner's achievements are commensurate with sustained national or international acclaim at the very top of his field.

Aug212012_01B2203.pdfAppeal Summarily Dismissed

DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center and is now before the administrative Appeals Office (AAO) on appeal, The appeal will be dismissed.

The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U,S,C § 1 153(b)(1)(A), as an alien of extraordinary ability. In a detailed, eight-page decision, the director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained national or international acclaim. Specifically, the director determined that the petitioner submitted qualifying evidence under only one of the regulatory criteria, of which a petitioner must meet at least three, and that the evidence in the aggregate did not establish the petitioner's sustained national or international acclaim.

At each stage of the process (accompanying the initial petition, in response to the director's request for evidence (RFE), and on appeal), counsel has simply listed the evidence rather than briefing how this evidence relates to the eligibility requirements for the classification sought. The most substantial guidance was counsel's statement in response the RFE, in which counsel listed four letters that should be considered under the contributions of major significance criterion.


On appeal, counsel does not specifically address the reasons for which the director concluded that the petitioner's evidence failed to satisfy the requirements of each criterion, and counsel also fails to identify any erroneous conclusion of law or statement of fact on the part of the director. Instead, counsel simply asserts that the director erred as a matter of law and as a matter of fact in finding that the petitioner did not satisfy the requirements of the regulations, without identifying any specific error attributable to the director. On the Form 1-290B, Notice of Appeal or Motion, counsel merely listed the regulatory requirements that, in his opinion, the AAO should presume that the petitioner meets. In the subsequent submission, the only specific conclusion counsel attempts to address is the director's finding that the petitioner failed to provide "proper" translations for the published material in the record. The single translation the petitioner submits on appeal, however, is not certified as required under 8 C.F.R. § 103.2(b)(3). Moreover, counsel makes no attempt to address the director's concern that the published material was not "about" the petitioner as required under 8 C.F.R. § 204.5(h)(3)(iii). Although the petitioner provides additional evidence in addition to the translation, counsel offers no explanation regarding how this additional evidence demonstrates error on the part of the director or even to which of the regulatory criteria this evidence relates.

As stated in the regulation at 8 C.F.R. § 103.3(a)(1)(v), an appeal shall be summarily dismissed if the concerned party fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. Cf. Idy v. Holder, No. 11-1078, 2012 WL 975567 (1st Cir. Mar. 23, 2(12) (where an alien fails to raise any legal issue regarding the Board of Immigration Appeals denial of an inadmissibility waiver, the Court of Appeals is deprived of jurisdiction). See also Desravines v. United States Attorney General, No. 08-14861. 343 F. App'x 433, 435 (11th Cir. 2009) (finding that issues not briefed on appeal are deemed abandoned); Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979) (deeming abandoned an issue raised in the statement of issues but not anywhere else in the brief). In this instance, the petitioner has not identified a basis for the appeal. The petitioner does not contest the director's specific findings and offers no substantive basis for the filing of the appeal. As the petitioner failed to provide any specific statement or argument regarding the basis of his appeal, the appeal must be summarily dismissed.


ORDER: The appeal is dismissed.


The petitioner seeks classification as an "alien of extraordinary ability," [in the arts] as a musician, pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A). The director determined that the petitioner had not met the initial requirement of submitting three types of qualifying evidence and that she had established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. Specifically, while the director found that the petitioner had submitted qualifying published material, the director further concluded that she had not submitted any additional qualifying evidence because the events at which she performed were not showcases of her work and because her roles for various organizations or establishments were not leading or critical.On appeal, the petitioner states, in a conclusory manner, that the director erred in denying the petition, noting that she submitted newspaper articles from major media, which the director did not contest, evidence of performing at an award ceremony that is considered the "most important Latin music industry event in the world," and evidence of her performance at the 7th Annual Florida Music Festival and Conference. The petitioner did not explain how the events where she performed were showcases of her work or how her roles were leading or critical and has not challenged any other aspect of the director's decision, including the final merits determination.

The petitioner indicates on the Form 1-2908, Notice of Appeal or Motion, that in support of the appeal, she would submit a brief and/or additional evidence to the AAO within 30 days. Specifically, on the Form 1-2908, the petitioner states "Other facts and evidence will be presented with my brief." The Form 1-29013 is dated September 28, 2011. As of this date, nearly a year later, the AAO has received nothing further from the petitioner.

As provided in the regulation at 8 C.F.R. § 103.3(a)(I)(v), an appeal shall be summarily dismissed if “the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal.”



The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in athletics as a coach, more specifically a cycling coach. ….

* * * * *In the director's decision, the director determined that the petitioner failed to establish eligibility under a single regulatory category of evidence. The director then conducted a final merits determination in accordance with Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) and determined that the petitioner "ha[s] not reached a level of expertise indicating that you are one of that small percentage who has risen to the top of your field of endeavor," 8 C.F.R. § 204.5(h)(2) and that the evidence "does not establish sustained acclaim." See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3).

On appeal, counsel repeated sections of the director's decision and claimed in part 3 on Form 1-290B, Notice of Appeal or Motion:

The Petitioner will demonstrate that his coaching and his recognition by the appropriate experts are present. Further he will prove that he played a leading or critical role for an organization or establishment of distinguished reputation. This will be shown by the preponderance of evidence that he is qualified for the benefit sought consistent with the Matter of E-M-, 20 I & N. Dec. 77 (BIA 1989). The Petitioner respectfully requests that the Service reverse the denial of the 1-140 petition. In the accompanying letter, counsel generally repeats previous claims, without explaining why the AAO should find those claims any more persuasive than the director did.

Counsel did not offer any additional arguments identifying any errors of law or fact in the director's analysis. See Desravines v. United Stales Attorney Gen., No. 08-14861, 343 F. App'x 433, 435 (11 th Cir. 2009) (finding that issues not briefed on appeal are deemed abandoned). Counsel does not specifically challenge any of the director's findings or point to specific errors in the director's analyses of the documentary evidence submitted for


the categories of evidence at 8 C.F.R. § 204.S(h)(3). The AAO notes that the petitioner submitted three "Professional Certificates & Recommendations" without certified translations on appeal. As the translations did not comply with the terms of 8 C.F .R. § 103 .2(b )(3), they cannot be considered here.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act). 8 USC 1153(b)(I)(A), as an alien of extraordinary ability [in the sciences] as a mechanical engineer.

The petitioner satisfied the antecedent regulatory requirement; see AAO’s Final Merits Determination as to why the petition was denied.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C 1153(b)(I)(A), as an alien of extraordinary ability [in the arts] as an opera singer.

* * * * *In the director's decision, she determined that the petitioner only met the published material criterion pursuant to the regulation at 8 CF.R. § 204.5(h)(3)(iii) and the artistic display criterion pursuant to the regulation at CF.R. 204.5(h)(3)(vii). In counsel's brief on appeal, counsel affirms the decision of the director regarding the published material criterion and the artistic display criterion and claims that the petitioner also meets the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 204.5(h)(3)(viii). Counsel does not contest the findings of the director for any of the other previously claimed criteria or offer additional arguments. The AAO, therefore, considers them to be abandoned. See Sepulveda v. U.S. Att’y Gen., 40 I F.3d 1226. n. 2 (11th Cir. 2005): Hristov v. Roark. No. 01J-CV-27312011, 2011 WL 4711885 at * I. *9 (E.D.N. Y. Sept. 30, 2011) (the court found the plaintiff’s claims to be abandoned as he failed to raise them on appeal to the AAO).


AAO withdrew one positive finding and reversed one negative finding, which leaves the petitioner in the same position of failing to satisfy the antecedent regulatory requirement. AAO also discussed the petitioner’s earlier O-1 NIV approval. No Final Merits Determination required, AAO reserved jurisdiction.


The petitioner seeks the beneficiary's classification as an "alien of extraordinary ability"' in the arts as a chef, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( 1)(A). ….

* * * * *Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

The petitioner claims to meet this criterion for the first time on appeal. The methods vary by which a petitioner can be notified of evidentiary requirements. For example, a petitioner is considered to be on notice through the specific requirements outlined within the regulations, or through various forms of communication from USCIS to a petitioner or applicant noting an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) notified the petitioner of the specific filing requirements to demonstrate eligibility under the extraordinary ability classification. In addition, the instructions to the Form 1-140 petition state that the petitioner "must attach evidence with [the) petition showing that the alien has sustained national or international acclaim" and then lists the ten regulatory criteria. Therefore, the petitioner must claim every criterion that the petitioner would like to be considered before the director. In instances when the petitioner was notified of the types of evidence that are required to demonstrate eligibility and was afforded the opportunity to provide the evidence prior to the issuance of an adverse decision, new eligibility claims will not be considered on appeal. See Matter of Soriano, 19 I&N Dec. at 700.


If the petitioner would like for USCIS to consider claims to additional eligibility criteria, this must be accomplished through the filing of a new petition. See id. at 766. Cf. Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first time on appeal are not properly before the Board of Immigration Appeals and that the Board will not issue a determination on the matter.) Although the AAO maintains de novo review of appellate cases and a petitioner may supplement the record in regards to previous claims, a petitioner may not raise a previously unclaimed eligibility criterion on appeal. See Matter of Soriano, 211&N Dec. at 706.

Petitioner failed to meet antecedent regulatory requirement, no Final Merits Determination was performed.


On the Form 1-140 petition, part 6, the petitioner indicated that he sought classification as an "alien of extraordinary ability" [in athletics] as [a] table tennis athlete, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), In counsel's brief filed in support of the petition, counsel also referenced the petitioner's accomplishments as "a leading table tennis teacher and skills trainer," i.e., a table tennis coach. The director determined that the petitioner has not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability as an athlete or coach. While the petitioner initially submitted some evidence relating to his intent to continue working as an athlete, the director concluded, based on all the evidence, that the petitioner intended to work as a coach.


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences and arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 USC § 1153(b)(1)(A) as a scientific filmmaker and creator of the Imagine Science Film Festival. The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of his sustained


national or international acclaim.

As petitioned failed to satisfy three criteria, no Final Merits Determination was required.


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in the sciences.

* * * * *This petition, filed on June 7, 2011, seeks to classify the petitioner as an alien with extraordinary ability as a systems and control engineering researcher.

* * * * *In the present matter, the petitioner has submitted extensive documentation of his achievements in the field of thermal fluid control and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained national acclaim and that his achievements have been recognized in the field of expertise. Moreover, the submitted documentation shows that the petitioner is among that small percentage who have risen to the very top of the field of endeavor.


The petitioner seeks classification for the beneficiary as an "alien of extraordinary ability" in athletics, ….* * * * *Based on the petitioner's answers to the questions on Form I-140 and the submitted documentation, the record reflects that the beneficiary intends to continue to work in the area of coaching rather than competition. It should also be noted that, according to the record, the beneficiary has been coaching since 1999 and, thus, has had plenty of opportunity to earn acclaim as a coach. As noted by the director in both the request for


evidence and the denial notice, the regulation at 8 C.F.R. § 204.5(h)(3) must be satisfied through the beneficiary's achievements as a coach. As such, the evidence submitted by the petitioner regarding the beneficiary's accomplishments as a competitor will not be considered here.

Sep042012_01B2203.pdfAppeal Dismissed

The petitioner seeks classification for the beneficiary as an "alien of extraordinary ability" in the arts, as a photographer ….

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Oct222012_01B2203.pdf Appeal Rejected as Untimely FiledActually dated May 14, 2012

The record indicates that the service center director issued the decision on January 5, 2011. It is noted that the service center director properly gave notice to the petitioner that it had 30 days to file the appeal, as the denial was sent via facsimile. Neither the Act nor the pertinent regulations grantthe AAO authority to extend this time limit.


Although counsel dated the Form I-290B February 3, 2011, it was not received by the service center until February 7, 2011, or 33 days after the decision was issued. Accordingly, the appeal was untimely filed.

The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Texas Service Center. See 8 C.F.R. § 103.5(a)(1)(ii). The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO.

Nov032012_05B2203.pdf Appeal Dismissed

The petitioner seeks c1assitication as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(I)(A), specifically as a dancer and Dance Captain for Riverdance. The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

* * * * *On appeal, the petitioner asserts that she submitted sufficient qualifying evidence under five of the ten regulatory categories. In addition, the petitioner states in her appeal brief that other dancers in similar circumstances had been approved for the I-140 petition. Considering the evidence in the aggregate, the petitioner has not established eligibility for the benefit sought by a preponderance of the evidence.


A. Approvals of Similar Petitions

On appeal, counsel, on behalf of the petitioner asserts that she should be approved because previous similar petitions filed by [REDACTED] from [REDACTED] have been approved. Counsel outlines that three former Lead Dancers and one Dance Captain have received favorable adjudications on their petitions. As an initial observation, Lead Dancer and Dance Captain are distinct


positions with apparent, distinct titles. More importantly, the AAO reviews appeals on a case-by-case basis. The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g, Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Therefore, the AAO is not persuaded that the prior approvals mentioned in the appeal brief have any bearing on the review of the appeal that is now pending before the AAO and will determine the current appeal on whether or not the petitioner established eligibility as an alien of extraordinary abilities under the Act and implementing regulations.


The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A), specifically as a contemporary visual artist.


The petitioner seeks classification as an "alien of extraordinary ability" in education as a middle school Chinese language teacher, …..


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences, …

* * * * *While the AAO disagrees with the director's statement that "[t]he Best Paper Awards appear to have been won by multiple individuals," implying that the award must be won by the petitioner alone, the record lacks evidence that the awards were nationally or internationally recognized for excellence in the field. ….


* * * * *…. The AAO is not persuaded that receiving an award as a student at the age of twelve or thirteen equates to receiving an award for excellence in the petitioner’s field of endeavor. ….

The petitioner only met two criteria where three were needed. No Final Merits Determination was required.


According to Part 6 of the Form 1-140 petition, the petitioner seeks classification as an "alien of extraordinary ability" pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A) as an "other health care practitioner." The petitioner is a licensed acupuncturist. Medicine falls within the sciences. The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability.

Nov032012_11B2203.pdf Summarily Dismissed

A Costly Mistake : This person checked the wrong box on the I-140 petition. He is really seeking EB-3 “skilled labor” as a brick layer, not EB-1 Extraordinary Ability.

The petitioner, on his visa petition, indicated that he seeks classification as an "alien of extraordinary ability" pursuant to section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. The director, in the request for evidence (RFE), noted that the petitioner provided no evidence in support of his visa petition. In response to the director's RFE, petitioner submitted a statement indicating that in Part 2 of the Form 1-140, it should be rel1ected that he chooses to petition as "g. Any other worker (requiring less than two years of training or experience)," instead of “a. An alien of extraordinary ability." Along with the statement attempting to clarify the category marked on the Forn1 1-140, the petitioner submitted three letters of support that state that the petitioner is a good brick


layer. The record does not contain an ETA Form 9089 Alien Employment Certification approved by the Department of Labor as required for workers requiring less than two years of training or experience. Section 203(b)(3)(C) of the Act.

In the director's decision, the director determined that because the petitioner failed to submit any evidence under the regulatory criteria outlined in 8 CF.R. § 204.5(h)(3)(i)-(x), the petitioner failed to establish he is an alien of extraordinary ability under section 203(b)(l)(A) of the Act. Inasmuch as the petitioner indicated that the filing category rel1ected on the visa petition was erroneous, the director concluded that consistent with Matter of Izummi, 21 I&N Dec. 169 (Assoc. Comm'r 1998), and Matter of' Katigbak, 141&N Dec. 45. 49 (Reg'l Comm'r 1971), a petitioner must establish eligibility at the time of filing and thereby is precluded from making material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to US CIS requirements.

On appeal, the petitioner states that he is going to apply for benefits under section 245 of the Act, 8 U.S.C § 1255, and essentially maintains that he is submitting all requested evidence. The petitioner submits all the documents he previously submitted in his RFE response and submits for the first time his birth certificate, marriage certificate, his children's birth certificates, children's social security cards, school records, tax documents, decd to his home, and several identity cards for him or his wife issued by various government entities. The statutory provision that the petitioner identifies on appeal does not correspond to the filing category identified on his visa petition. The documents that the petitioner submits for the first time on appeal are not probative or relevant in substantiating a claim of extraordinary ability. Critically, the petitioner has failed to identify any erroneous conclusion of law or fact in the director's decision disallowing the change in the visa petition category and ultimate finding that the petitioner failed to establish eligibility for the benefit sought. As stated in 8 CF.R. § 103.3(a)(1)(v), an appeal shall be summarily dismissed if the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. The petitioner has not specifically addressed the reasons stated for denial and has not provided probative evidence. The appeal must therefore be summarily dismissed.


Dec042012_01B2203.pdfMotion Dismissed

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition on November 4, 2008, The Administrative Appeals Office (AAO) dismissed the appeal on September 21, 2009, The petitioner filed a motion to reconsider the AAO appellate dismissal, which the AAO dismissed on April 14, 2011, she then filed a motion to reopen and reconsider the previous motion, which the AAO dismissed on July 30, 201L The matter is now before the AAO on a third motion, which is a motion to reconsider. The present motion to reconsider will be dismissed.

Dec042012_03B2203.pdfAppeal Dismissed

The petitioner seeks classification as an "alien of extraordinary ability" in the arts, specifically as a musician, ….

* * * * *The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory requirement of three types of evidence.


DISCUSSION: The Director. Vermont Service Center. denied the employment-based immigrant visa petition on September 26, 2005. On appeal, the Administrative Appeals Office (AAO) issued a notice advising the petitioner of derogatory information on March 7, 2007, providing the petitioner fifteen days to respond to the derogatory evidence that the AAO intended to use to make a finding of misrepresentation. On May 4, 2007, the AAO affirmed the director's adverse decision on the petition and issued a formal finding of misrepresentation. The petitioner's current counsel moves to reopen proceedings. In the brief supporting the motion to reopen, counsel asserts that independent and objective evidence is now available that shows the AAO’s previous finding of fraud was erroneous. The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.


This is a repeat of immediately preceding decision. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page


[In the arts…..]II. ANALYSIS

A. Claims Relating to Comparable Evidence

The regulation at 8 C.F.R. § 204.5(h)( 4) allows an alien to submit comparable evidence if the alien is able to demonstrate that he or she is unable to qualify for this classification because the regulatory criteria at 8 C.F.R. § 204.5(b)(3)(i)-(x) are not directly applicable to the alien's occupation. It is the petitioner's burden to explain why the regulatory criteria are not readily applicable to his occupation and how the evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). The regulatory language precludes the consideration of comparable evidence in this case, as there is no indication that eligibility for visa preference in the petitioner's occupation as a music composer and producer cannot he established by the ten criteria specified by the regulation at 8 C.F..R. § 204.5(h)(3). In fact, as indicated in this decision, counsel mentioned evidence in the brief or at the time of the initial petition filing that specifically addressed four of the ten criteria at the regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to meet or submit documentary evidence of at least three of these criteria, the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. As such, no evidence that the petitioner submitted will be considered as comparable evidence.


The petitioner seeks classification as an "alien of extraordinary ability," in athletics, ….


The petitioner seeks classification as an "alien of extraordinary ability" in the sciences as a cardiology fellow, ….

* * * * *


As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to demonstrate that he satisfies the antecedent regulatory requirement of three types of evidence.

Dec082012_01B2203.pdfSummarily DismissedIn athletics.

Dec082012_02B2203.pdfSummarily DismissedIn business.


DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal on July 11, 2011. The petitioner submitted a motion on August 16, 2011, and on July 23, 2012, the AAO dismissed the petitioner's motion to reopen as untimely and for failure to meet the requirements of a motion when filed. The matter is now before the AAO again as a motion to reopen and reconsider.

Dec112012_01B2203.pdfRemanded for Further Processing

DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director" s decision; however, because the petition is not approvable, it is remanded for further action and consideration.

The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or international acclaim of the beneficiary necessary to qualify for classification as an alien of extraordinary ability. The director's decision also stated that the petitioner failed to respond to the director's notice of intent to deny.

On appeal, counsel asserts that a response was timely filed. The record contains evidence that the petitioner did respond to the


director's notice, specifically a copy of the response and a certified mail postal receipt showing that the director received the response on November 17, 2011. As the director failed to consider the submitted evidence, this matter will be remanded for a full adjudication of the petition on the merits.

The director must issue a new denial notice, containing specific findings that will afford the petitioner the opportunity to present a meaningful appeal. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.

ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is remanded to the director for issuance of a new, detailed decision which, if adverse to the petitioner, is to be certified to the Administrative Appeals Office for review.


DISCUSSION: The Director, California Service Center, initially granted the employment-based immigrant visa petition on October 9, 2001. On September 10, 2010, the Director, Nebraska Service Center (the director), issued a notice of intent to revoke (NOIR) the approval of Form 1-140, the Immigrant Petition for Alien Worker. In a Notice of Revocation (NOR), dated October 19, 2010, the director ultimately revoked the approval of the petition. On appeal, the Administrative Appeals Office (AAO) affirmed the director's adverse decision on the petition on May 1, 2012. The matter is now before the AAO on a motion to reopen. FN1 The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.________________ FN1 On May 31, 2012, counsel submitted a brief titled "Petitioner's Motion to Reopen Revocation of Her Immigration Petition for Alien Worker (Form 1-140)" (hereforth "brief in support of the motion") and also submitted a second brief titled "Respondent's Motion to Accept Supplemental Brief' (hereforth "supplemental brief'). The AAO will consider all arguments and evidence submitted along with both briefs collectively as part of one motion that is currently before the AAO.

Dec172012_02B2203.pdfSummarily Dismissed


DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. On April 20, 2012, the Administrative Appeals Office (AAO) summarily dismissed the appeal and affirmed the director's adverse decision on the petition. The matter is now before the AAO on a motion to reopen and reconsider. The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.


DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition on October 2, 2008. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal of that decision on October 21, 2009. The AAO dismissed the petitioner's first two motions to reopen and reconsider on April 12, 2011, and on July 11, 2012. The matter is again before the AAO on a motion to reopen and reconsider. The motion to reopen will be dismissed. The motion to reconsider will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.


DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center and is now before the Administrative Appeals Office (AAO) on appeal. Concurrently with the appeal, the petitioner also filed a motion to reopen with the director. The director reaffirmed the initial decision on motion. The matter before the AAO is the appeal of the director's initial decision. The appeal will be dismissed.

Dec182012_01B2203.pdfAppeal Rejected as Improperly Filed


The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability as an actress. ….



The appeal was sent directly to AAO, in contravention to the clear instructions. AAO returned the I-290B and fee. The appeal was finally received at the correct address but it was 3 days late. The director treated as a Motion and reaffirmed the denial. The director later withdrew the prior decision (on the “motion”) and returned the Appeal to a pending status. That Appeal was forwarded to AAO which dismissed it as untimely (and finding that it did not qualify to be treated as a Motion).

Dec182012_04B2203.pdfAppeal Dismissed w/Finding of Fraud

The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A) in "International Construction Economics." The director determined that the petitioner had not established the requisite extraordinary ability and failed to submit extensive documentation of her sustained national or international acclaim.

On May 22,2012, in accordance with the regulation at 8 C.F.R. § 103.2(b)(16)(i), the AAO issued a notice advising the petitioner that the approval of the petition was precluded pursuant to the marriage fraud provisions of section 204( c) of the Act.

* * * * *The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence.

* * * * *FURTHER ORDER: The AAO finds that the petitioner entered into

a fraudulent marriage and pursuant to section

204(c) the approval of the petitioner's visa

petition is prohibited.

Dec182012_05B2203.pdfSummarily Dismissed


DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, Texas Service Center. Subsequently, the director issued a notice of intent to revoke (NOIR) the approval of the petition. In a Notice of Revocation (NOR), the director ultimately revoked the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed.

Dec192012_02B2203.pdfAppeal Dismissed following Motion Dismissal

The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A) as a film producer.


News & Politics

Non precedent aao decisions for extraordinary ability visas 2012 final