AAO EB-1EA Dismissal Apr 2, 2012 AAO's improved approach
 

AAO EB-1EA Dismissal Apr 2, 2012 AAO's improved approach

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AAO EB-1EA Dismissal Apr 2, 2012 AAO's improved approach AAO EB-1EA Dismissal Apr 2, 2012 AAO's improved approach Document Transcript

  • ll.S. llcparlrncnl of Homeland Sccuritj U.S. Cilirenship and Immigration Sen·ic·cs Administrative Appeals Office ( AAO) 0 ~ /." ,r~ r .~·_, _,~.:~ ~~) 20 lvlas~achw.. ctts Ave., N.W., MS 2090 ~ ~.1 - ..---:f.~ 7~~,.-..-- r" ,.. ~. ·- .~_;--··· WashinQlon. DC :2052!-2090 -•·" U.S. Citizenship and Immigration plJBLlCCOPY Serviceshttp://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2012/Apr022012_01B2203.pdfCLICK HERE FOR CLEAN COPY OF AAO POSTED DECISION. DATE: APR 0 2 2012 Office: NEBRASKA SERVICE CENTER FILE: INRE: Petitioner: Beneficiary: PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) ON BEHALF OF PETITIONER: In my opinion, the approach taken in this AAO Decision is highly improved over earlier post-Kazarian decisions. It is the first AAO Decision I have seen that does not go beyond what is necessary. In other words, since the antecedent procedural step of presenting the minimum initial or prima facie evidence was not satisfied, there was no need to proceed to an unecessary "Final Merits INSTRUCTIONS: Determination" or qualitative analysis and evaluation. Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, By Joseph P. Whalen at 12:18 pm, Oct 10, 2012 ~ Perry Rhew · e-mail me at: joseph.whalen774@gmail.com Chief, Administrative Appeals Office www.uscis.gov
  • DISCUSSION: The employment-based immigrant visa petition was denied by the Director,Nebraska 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 section203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as analien of extraordinary ability in athletics. The director determined that the petitioner had notestablished the requisite extraordinary ability and failed to submit extensive documentation of hissustained national or international acclaim. As will become clear, the Director erred but it was harmless. The conclusion is correct but the process employed was not.Congress set a very high benchmark for aliens of extraordinary ability by requiring through thestatute that the petitioner demonstrate the aliens "sustained national or international acclaim" andpresent "extensive documentation" of the aliens achievements. See section 203(b)(1)(A)(i) of theAct and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states thatan alien can establish sustained national or international acclaim through evidence of a one-timeachievement of a major, internationally recognized award. Absent the receipt of such an award, theregulation outlines ten categories of specific objective 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 regulatorycategories of evidence to establish the basic eligibility requirements.On appeal, counsel asserts that the petitioner meets at least three of the ten regulatory categories ofevidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of hisextraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The AAOacknowledges that the standard of proof is preponderance of the evidence, as noted by counsel onappeal. The "preponderance of the evidence" standard, however, does not relieve the petitionerfrom satisfying the basic evidentiary requirements required by the statute and regulations.Therefore, if the statute and regulations require specific evidence, the petitioner is required tosubmit that evidence. See section 203(b )(1 )(A)(i) of the Act, 8 U .S.C. § 1153(b )(1 )(A)(i), and8 C.F.R. §§ 204.5(h)(2) and (3). In this matter, the documentation submitted by the petitioner failsto demonstrate by a preponderance of the evidence that he has achieved sustained national orinternational acclaim. See also Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), n.7.For the reasons discussed below, the AAO will uphold the directors decision. I. LAWSection 203(b) of the Act states, in pertinent part, that: (1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C): (A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
  • Page 3 (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the aliens entry into the United States will substantially benefit prospectively the United States.U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and NaturalizationService (INS) have consistently recognized that Congress intended to set a very high standard forindividuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 51 Cong., 2dSess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability"refers only to those individuals in that small percentage who have risen to the very top of the field ofendeavor. !d.; 8 C.F.R. § 204.5(h)(2).The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the aliens sustainedacclaim and the recognition of his or her achievements in the field. Such acclaim must be establishedeither through evidence of a one-time achievement (that is, a major, international recognized award)or through the submission of qualifying evidence under at least three of the ten categories of evidencelisted at 8 C.F.R. § 204.5(h)(3)(i)-(x).In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of apetition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Althoughthe court upheld the AAOs decision to deny the petition, the court took issue with the AAOsevaluation of evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimateconcerns about the significance of the evidence submitted to meet those two criteria, those concernsshould have been raised in a subsequent "final merits determination." !d. at 1121-22.The court stated that the AAOs 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 "theproper procedure is to count the types of evidence provided (which the AAO did)," and if thepetitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed tosatisfy the regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122(citing to 8 C.F.R. § 204.5(h)(3)).Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then consideredin the context of a final merits determination. In this matter, the AAO will review the evidence under1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirementsbeyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi).
  • Page 4the plain language requirements of each criterion claimed. As the petitioner did not submit qualifyingevidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfythe regulatory requirement of three types of evidence. !d. II. INTENT TO CONTINUE WORK IN THE AREA OF EXPERTISE IN THE U.S.The statute and regulations require that the petitioner seeks to continue work in his area ofexpertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C.§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). On the Form I-140, Immigrant Petition for AlienWorker, in Part 6, "Basic Information About the Proposed Employment," the petitioner lists hisjob title as "Fencing Coach." Subsequent to his arrival in the United States in 2006, the recordreflects that the ner has worked as an petitioner submitted a stating: "We, , petitioned and received an 0-1visa for [the petitioner] in 2006. He has been our Assistant Fencing Coach since that time. Wesupport his desire to have permanent residency so that he may continue to ... work in the U.S. asan elite fencing coach." Based on the letter from the president of the OFA, the petitionersongoing employment as a fencing coach after his arrival in this country in 2006, and theinformation provided on the Form 1-140, the record is clear that the petitioner intends to continueto work in the area of coaching in the United States.Aside from documentation establishing the petitioners intention to continue to work in theUnited States as a fencing coach, the petitioner submitted documentation pertaining to hisathletic achievements as a fencing competitor in the 1990s. There is no documentary evidenceshowing that the petitioner has competed nationally or internationally as a fencer since that timeperiod. While a fencing competitor and a coach may share knowledge of the sport, the two relyon very different sets of basic skills. Thus, competitive athletics and coaching are not the samearea 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 ones "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, Lees 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.!d. at 918. The court noted a consistent history in this area. While the record demonstrates that thepetitioner intends to continue working as a fencing coach, there is no evidence indicating that heintends to compete as fencer in the United States. The AAO acknowledges the possibility of analiens extraordinary claim in more than one field, such as a coaching and competitive fencing, butthe petitioner must demonstrate "by clear evidence that the alien is coming to the United States tocontinue work in the area of expertise." See 8 C.F.R. § 204.5(h)(5). In this case, there is nodocumentary evidence establishing that the petitioner intends to continue working in the UnitedStates as a competitive fencer. Accordingly, the petitioner must satisfy the statutory requirement "Clear Evidence" is more than by a More speaks to the quality and "preponderance". value as to persuasiveness alone and NOT to quantity at all.
  • Page 5at 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 his achievements as a coach.USCIS recognizes that there exists a nexus between competing and coaching in a given sport. Toassume that every extraordinary athletes area of expertise includes coaching, however, would betoo speculative. To resolve this issue, a balanced approach is appropriate when reviewing theevidence of record. Specifically, in a case where an alien has achieved recent national orinternational acclaim as a competitive athlete and has sustained that acclaim in the field ofcoaching at a national level, the AAO can consider the totality of the evidence as establishing anoverall pattern of sustained acclaim and extraordinary ability such that the AAO can conclude thatcoaching is within the aliens area of expertise. However, as the petitioner in the present matterhas had an extended period of time to establish his reputation as a coach beyond the years in whichhe successfully competed as an athlete in 1990s, the petitioner must demonstrate his extraordinaryability as a coach. III. ANALYSIS A. Evidentiary CriteriaThe petitioner has submitted documentation pertaining to the following categories of evidenceunder 8 C.F.R. § 204.5(h)(3). 2 Documentation of the aliens receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.The petitioner submitted an August 30, 2006 letter"[The "tioner greatest successes were w ........0 Furthermore, he competed in the Olympic Games inwas the winner of •••••••ll!!l!!!!l!!l!!!!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!~ The pe ti ti one r also submittedan August 16, 2006 letter from the stating that he competedfor s team won 3 place in The letter also states that the petitioner was the Rather than submitting primary evidence of his prizes andawards from the preceding fencing competitions, the petitioner instead submitted letters attesting totheir existence. Going on record without supporting documentary evidence is not sufficient forpurposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec.158, 165 (Commr 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (ReglCommr 1972)). A petition must be filed with any initial evidence required by the regulation.8 C.F.R. § 103.2(b)(1 ). The nonexistence or other unavailability of primary evidence creates apresumption of ineligibility. 8 C.F.R. § 103.2(b )(2)(i). According to the same regulation, onlywhere the petitioner demonstrates that primary evidence does not exist or cannot be obtained may2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in thisdecision.
  • Page 6 the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not exist, the petitioner must submit an original written statement on letterhead from the relevant authority indicating the reason the record does not exist and whether similar records for the time and place are available.~)(2)(ii). The August 16, 2006 letter from the- and the August 30, 2006 letter from the comply w1th the preceding regulatory requirements.Regardless, the "field of endeavor" for which classification is sought is coaching. There is noevidence indicating that the petitioner seeks to work in the United States as a competitive fencer.Awards resulting from the petitioners athletic victories as a fencing competitor during the 1990scannot be considered evidence of his national recognition as a coach. As previously discussed, thestatute and regulations require that the petitioner seeks to continue work in his area of expertisein the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(1)(A)(ii); 8C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914. Accordingly, awards wonby the petitioner in national or international fencing competitions do not meet the elements of thisregulatory criterion for purposes of establishing his extraordinary ability as a coach.On March 15, 2010, the director requested the petitioner to submit evidence of nationally orinternationally recognized prizes or awards for excellence that he "received as a fencing coach."In response to the directors request for evidence (RFE), counsel asserts that the director shouldconsider the gold medals and other awards won by fencers coached by the petitioner as evidencefor this regulatory criterion. Counsel further states: There are no fencing coach recognitions in the United States awarded by the national governing body. Some nations ... recognize their top fencing coaches by providing a cash award if their fencers win the World Championships or Olympics. However, there are currently no awards in the United States dedicated to honoring fencing coaches.Without documentary evidence to support the claim, the assertions of counsel will not satisfy thepetitioners burden of proof. The unsupported assertions of counsel do not constitute evidence.Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec.1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The AAOcannot ignore that the documentation submitted by the petitioner shows that national awards doexist for · coaches. For instance the itioner submitted a November 11letterU.S. Olympic Committee forRFE included a "Biography was named the In recognition of ground-breaking contributions to fencing United States, the U. Association presented him with the
  • Page 7 his excellent results at the international level. The petitioner also submitted an. ."History" document stating: who was recently named the Coach of the Year in fencing" by the United States Fencing Coaches Association. Thus, counsels statement that there are "no awards in the United States dedicated to honoring fencing coaches" appears to be incorrect. Unh and there is no evidence showing that the petitioner has received nationally recognized prizes or awards for excellence in coaching.Regarding counsels assertion in response to the RFE that the director should consider the goldmedals and other awards won by fencers coached by the petitioner as evidence for this regulatorycriterion, the AAO notes that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i)requires documentation of "the aliens receipt" of nationally or internationally recognized prizesor awards for excellence in the field of endeavor. Prizes or awards received by individuals otherthan the petitioner himself do not meet the plain language requirements of the regulation."[N]either USCIS nor an AAO may unilaterally impose novel substantive or evidentiaryrequirements beyond those set forth at 8 C.F.R. § 204.5." See Kazarian v. USCIS, 596 F.3d at1121 (citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008)). Medalsreceived by the petitioners students in fencing competitions do not equate to his receipt of thoseawards. Nevertheless, the awards received by athletes the petitioner has coached will not beignored and shall be considered later in this decision under the category of evidence at 8 C.F.R.§ 204.5(h)(3)(v).As there is no evidence demonstrating that the petitiOner has received nationally orinternationally recognized prizes or awards for excellence in coaching, the petitioner has notestablished that he meets the plain language requirements of this regulatory criterion. Published material about the alien in professional or major trade publications or other major media, relating to the aliens work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation.:1 See http://usfca.org/, accessed on March 26, 2012, copy incorporated into the record of proceeding.
  • Page 8In general, in order for published material to meet this criterion, it must be primarily about thepetitioner and, as stated in the regulations, be printed in professional or major trade publications orother major media. To qualify as major media, the publication should have significant national orinternational distribution. Some newspapers, such as the New York Times, nominally serve aparticular locality but would qualify as major media because of significant national distribution, 4unlike small local community papers.In submitted ptioned photographm that identifies him and eight others, but theauthor of the material was not provided and there is no circulation evidence showing that qualifies as a form of major media. The plain language of the regulation at8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the alien in professional or majortrade publications or other major media" including "the title, date and author of the material." Thepreceding captioned photograph does not meet the requirements of this regulatory criterion.The petitioner submitted a December 14, 2000 article entitled- but the name of the publication and the author of the material were not identified asrequired by this regulatory criterion. Further, the article, which only briefly mentions thepetitioner in passing, is not about him. Instead, the article is about the competitive fencingaccomplishments of the petitioners brother-and fellow club memThe plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the publishedmaterial be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at*1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about theactor). Moreover, there is no circulation evidence showing that the article was in a professional ormajor trade publication or some other form of major media.~er submitted an article in entitled- but the author of the material was not · as the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the article is not about the petitioner and there is no circulation evidence showing the article was printed in a professional or major trade publication or some other form of major media.The petitioner submitted a - article entitled on top," but the name of thepublication and the author of the material were not identified as required by this regulatorycriterion. Further, the article is not about the petitioner. Instead, the article is about thecompetitive fencing accomplishments of the petitioners brother and fellow clubmembers Moreover, there is no ·--~~·~ .. u· or major trade publication or4 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. Forexample, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County,Virginia, for instance, cannot serve to spread an individuals reputation outside of that county.
  • Page 9The petitioner submitted an article entitled but thename of the publication, the author of the article, and the date of the material were not identifiedas required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, thearticle is not about the petitioner and there is no circulation evidence showing the article was printedin a professional or major trade publication or some other form of major media.The petitioner submitted an article entitled but the name ofthe publication, the author of the article, and the date of the material were not provided asrequired by this regulatory criterion. Further, the article is not about the petitioner and there is nocirculation evidence showing the article was printed in a professional or major trade publication orsome other form of major media.The petitioner submitted a captioned newspaper photograph from 2000 entitled butname of the newspaper and the author of the material were not identified as required by the plainlanguage of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the material is not about thepetitioner and there is no circulation evidence showing that it was printed in a professional or majortrade publication or some other form of major media. Accordingly, the preceding captionedphotograph does not meet the plain language requirements of this regulatory criterion. entitled includes a single sentence mentioning the petitioner. A pressrelease is a written communication directed at the news media for the purpose of announcinginformation claimed as having news value rather than "published material ... in professional ormajor trade publications or other major media." The AAO cannot conclude that a press release,which is not the result of independent media reportage and which is sent to journalists in order toencourage them to develop articles on a subject, meets the plain language requirements of thisregulatory criterion.The petitioner submitted additional articles in the German language (RFE response, Exhibit 15)that appear to discuss his achievements as an athlete in the 1980s and 1990s, but he failed tosubmit certified English language translations of the articles as required by the regulation at8 C.F.R. § 103.2(b)(3). Any document containing foreign language submitted to USCIS shall beaccompanied by a full English language translation that the translator has certified as completeand accurate, and by the translators certification that he or she is competent to translate from theforeign language into English. !d. Further, none of the preceding articles appear to meet all ofthe requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). For example, the articles weredeficient in that they did not identify the author and they lacked evidence that they werepublished in major media. Moreover, the plain language of this regulatory criterion requires thatthe published material be "about the alien ... relating to the field for which classification issought." In this matter, the "field for which classification is sought" is coaching. The AAOcannot conclude that the Exhibit 15 articles relate to the petitioners work as a coach. Aspreviously discussed, the statute and regulations require that the petitioner seeks to continue workin his area of expertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C.§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914.Accordingly, published material about the petitioners accomplishments as a competitive fencer
  • Page 10does not meet the elements of this regulatory criterion for purposes of establishing his extraordinaryability as a coach.In light of the above, the petitiOner has not established that he meets the plain languagerequirements of this regulatory criterion. Evidence of the aliens original scient[fic, scholarly, artistic, athletic, or business- related contributions of major significance in the field.The petitioner submitted letters of support from fencing experts discussing his accomplishmentsas a coach. states: to and to the European Team n 2001. In late 1990s and early 2000s, I had an exceptional opportunity to observe and admire [the petitioners] coaching abilities at . . in Germany, where the U.S. National Womens Sabre Team used to hold its European training camps between World Cup Tournaments. * * * A few years before the 2008 Beijing Olympic Games, I began searching for an Assistant Coach to ensure that the OFAs top fencers were ready to defend their medals and take new ones at the upcoming Olympics. * * * Although [the petitioner] was my first choice, it was by no means certain whether he would be willing to leave where he used to be - and depart Germany in order to assist me in training American fencers at * * * Since [the petitioner] joined the medal count has increased by eleven (11) new medals, rising from 37 to a total of 48 medals in only three years. Working as a coaching team with [the petitioner] allows both of us to bring out the best in our fencers because our respective fencing styles are different but complementary to one another. The fencers greatly benefit from being exposed to this diversification in
  • Page 11 training sess~able to adapt and use various techniques when fighting their opponents. ~with whom [the petitioner] worked particularly closely in preparation for her national and international competitions, has increased her personal medal count from eight (8) to fourteen (14) since [the petitioner] joined t h e · · ·states: I feel that my work with [the petitioner] in the two years leading up to the Olympic games in Beijing was crucial to my performance and I do not believe I could have made it to the medal stands without his help, support and kindness. [The petitioner] and I had private lessons, worked out together and he coached me during practice bouts. Director of Programs,-.,tates: Very few Olympic athletes have the ability to translate what they have learned as exceptional athletes into being a high caliber, elite coach. [The petitioner] has done that in Germany where he devel d four outstan German fencers to the level where they could win dent at the to a become t h e - [The petitioner] was hired b y - specifically to help the club train and prepare our top fencers for ~mpics. In just two short years of working closely as a personal coach to - · .. he became a crucial reason for • • • • • • • medal performance. . . . In addition to - he also provided tactical training advice and assistance to ... [The petitioner] not only had these two stellar athletes he assisted but also has coached other fencers of note. made it in two intensive years of work with to the top 3 rankings in the U.S. and was able to compete at the ·onships. · also played an active and critical role in · - took states: During my business trips to the had the opportunity to observe [the petitioner] as a fencing coach, both in through accomplishments of his students. Among them are a member of the German nat10 team, many other top finalists of the biggest tournaments in the Fencing World Cups series. fencing team has several outstanding athletes who
  • Page 12 ] in Oregon. Among them · states: I have known [the petitioner] for 5 years. I first met him in 2004 when I attended a training camp at the Olympic Training Center in Tauberbischoffsheim, Germany. As a member of the U.S. national fencing team I have trained often at this very well equipped fencing center as my teammates and I traveled throughout Europe between our World Cup competitions. I also spent time in Tauberbischoffsheim for my training preceding the •llil•ll!!l!!!!l!!!!l!!!!l!!l!!!!l!!i!l!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!~~~~~~ At this time the ti one r] was the and so I worked Two years ago, [the petitioner] came to Portland, Oregon as he was hired to be an Assistant Fencing Coach at my club, the Since that time and during my training and leading up to the Beijing Olympic Games, I worked closely 5 days a week with [the petitioner] and my other personal coach to prepare for the Olympic Games. I attribute much of my success to his expertise, coaching, guidance, and support he provided me during this period. states that the expenenceskilled person at the international level in his profession." states: "[The petitioner] possesses extensive training as a coach with us mternational experience." varsity fencing team, states: [The petitioner] is one of the most renown [sic] fencing coaches on the international fencing scene today. His own fencing record, his experience as a fencing coach to the and most of all his particular teaching technique make him one of the foremost masters of our sport in the world today .... [The petitioners] international achievements include training of winners and medalists of Olympic Games, World, and European Championships. In spite of his relatively young age he is instrumental in teaching coaching cadres for one of the most prominent fencing powers in the World. womens and mensvarsity fencing team, states: since many of [the petitioners] students have achieve championship titles. Among these students, [the petitioner] coached
  • Page 13 [The petitioner] retired from active fencing deciding to become a saber fencing coach, focus his time on other athletes. To date, his has accumulated ten years of coaching experience at the and a number of · ssive results throu his students. Most ner] worked as a trainer for the youth where he coached the sabre fencer •11111111111111111111111111111111111111111111111111111111111111 th In the meantime he also acted on behalf of the as a discipline trainer for the mens sabre juniors. states: finished his active career, [the petitioner] worked as a coach for t h e - and passed his large experience and knowledge on to young the cadre athletes who were coached him. Thus he led the and [The petitioner] worked as a trainer at the and passed on his broad experience to the young fencers, as we
  • Page 14In support of the above references statements, the petitioner submitted documentary evidence ofthe medals, competitive results, and rankings of the fencers coached by him. The AAO findsthat the preceding documentation is sufficient to demonstrate that the petitioner meets thisregulatory criterion as a coach. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.The preceding letters of support and further evidence in the record (such as the medal counts forthe petitioners fencers) demonstrate that he has performed in a critical coaching role fordistinguished organizations such as the - a n d theAccordingly, the AAO affirms the directors finding that the petitioner meets the plain languagerequirements of this regulatory criterion. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.The petitioner initially submitted an October 30, 2006 "Letter of Agreement" executed by himand-stating: - w i l l pay you a minimum yearly wage of $35,000 payable on a monthlybasis at the end of each calendar month. - m a y also pay you additional bonuses based onyour performance in the teaching of your classes, camps, and individual lessons and other-programs."In response to the directors RFE, the petitioner submitted a September 1, 2009 "Letter ofAgreement stating: -will pay you a minimum yearly wage of$60,000 at the end of each calendar month. - m a y also pay youadditional bonuses based on your performance in the teaching of your classes, camps, andindividual lessons and other . . programs." The September 1, 2009 "Letter of Agreement"was executed subsequent to the petitions February 19, 2009 filing date. Eligibility must beestablished at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec.45, 49 (Regl Commr 1971). Accordingly, the AAO will not consider the September 1, 2009"Letter of Agreement" in this proceeding.The petitioners response included his 2009 Form 1099-MISC, Miscellaneous Income, and his2009 Form W-2, Wage and Tax Statement, from the OFA reflecting that he received totalcompensation of $87,465 in 2009. The petitioner submitted additional Forms 1099-MISCshowing that t h e - paid him $70,929.52 in 2007 and $69,910 in 2008. As evidence that thepetitioner earns "a high salary or other significantly high remuneration for services, in relation toothers in the field," the petitioner submitted Economic Research Institute salary survey results forthe position of "Coach Athletic" and the "Job Group/Class" of "Fitness Trainers and AerobicsInstructors" in the area reflecting a "20 10 Trended Mean"(emphasis added) salary reliance on "mean" salar data relating to"Fitness Trainers and Aerobics Instructors" is not a properbasis for comparison for multiple reasons. First, the petitioner must submit evidence showing
  • Page 15that he has earned a "high" salary or other "significantly high" remuneration in relation to others inthe field, not simply a that is above in the field. Second, the petitioners relianceon salary data limited to is not an appropriate basis forcomparison in demonstrating that his earnings constitute a high salary or other significantly highremuneration in relation to coaches in the field working outside of those three localities. Third, thepetitioner has not established that the preceding salary survey results for "Fitness Trainers andAerobics Instructors" are relevant to his occupation of fencing coach. The record is void ofearnings data showing that the petitioner has received a "high salary" or "significantly highremuneration" in comparison with those performing similar work. See Matter of Price, 20 I&NDec. 953, 954 (Assoc. Commr. 1994) (considering professional golfers earnings versus otherPGA Tour golfers); see also Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (consideringNHL enforcers salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). Inthe present matter, the documentary evidence submitted by the petitioner does not establish that hehas received a high salary or other significantly high remuneration for services in relation to otherfencing coaches. Accordingly, the petitioner has not established that he meets the plain languagerequirements of this regulatory criterion. B. SummaryThe petitioner has failed to demonstrate that he satisfies the antecedent regulatory requirement ofthree types of evidence. C. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4)On appeal, counsel states: "To the extent that any of the letters, articles, medal counts, or otherevidence do not satisfy the enumerated criteria for this unique occupation, it constitutes othercomparable evidence of extraordinary ability under 8 C.F.R. § 204.5(h)(4)." The regulation at8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the tencategories of evidence "do not readily apply to the beneficiarys occupation." Thus, it is thepetitioners burden to demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are notreadily applicable to the aliens occupation and how the evidence submitted is "comparable" to thespecific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The regulatory languageprecludes the consideration of comparable evidence in this case, as there is no indication thateligibility for visa preference in the petitioners occupation cannot be established by the tencriteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable tosatisfy the plain language requirements of at least three categories of evidence at 8 C.F.R.§ 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission ofcomparable evidence. Counsels appellate brief does not explain why the regulatory criteria arenot readily applicable to the petitioners occupation. For instance, counsel does not explain why thepublished material, judging, and high salary categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iii),(iv), and (ix) are not readily applicable to coaching. Moreover, counsel fails to explain how theletters of support, articles, medal counts, and other unspecified evidence are "comparable" to anyspecific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The AAO notes that theletters of support were considered under the criteria at 8 C.F.R. §§ 204.5(h)(3)(v) and (viii), the
  • Page 16published articles were considered under the criterion at 8 C.P.R. § 204.5(h)(3)(iii), and the medalcounts for the petitioners fencers were considered under the under the criteria at 8 C.P.R.§§ 204.5(h)(3)(v) and (viii).The opinions of experts in the field are not without weight and have been considered in theAAOs discussion of the categories of evidence at 8 C.P.R.§§ 204.5(h)(3)(v) and (viii). USCISmay, in its discretion, use as advisory opinions statements submitted as expert testimony. SeeMatter of Caron International, 19 I&N Dec. 791, 795 (Commr 1988). However, USCIS isultimately responsible for making the final determination regarding an aliens eligibility for thebenefit sought. !d. The submission of letters from experts supporting the petition is notpresumptive evidence of eligibility; USCIS may evaluate the content of those letters as towhether they support the aliens eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&NDec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidenceas to "fact"). Thus, the content of the experts statements and how they became aware of thepetitioners reputation are important considerations. Even when written by independent experts,letters solicited by an alien in support of an immigration petition are of less weight thanpreexisting, independent evidence that one would expect of a fencing coach who has sustainednational or international acclaim at the very top of his field. The nonexistence of requiredevidence creates a presumption of ineligibility. 8 C.P.R. § 103.2(b)(2)(i). The classification soughtrequires "extensive documentation" of sustained national or international acclaim. See section203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.P.R. § 204.5(h)(3). Thecommentary for the proposed regulations implementing the statute provide that the "intent ofCongress that a very high standard be set for aliens of extraordinary ability is reflected in thisregulation by requiring the petitioner to present more extensive documentation than that required"for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). D. Prior 0-1 Nonimmigrant Visa StatusThe petitioner submitted documentation indicating that he is the beneficiary of an approved 0-1nonimmigrant visa petition for an alien of extraordinary. This prior approval does not precludeUSCIS from denying an immigrant visa petition based on a different, if similarly phrased standard.Each case must be decided on a case-by-case basis upon review of the evidence of record. It mustbe noted that many I-140 immigrant petitions are denied after USCIS approves priornonimmigrant 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 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions aresimply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see alsoTexas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals donot preclude USCIS from denying an extension of the original visa based on a reassessment ofthe aliens qualifications).The AAO is not required to approve applications or petitions where eligibility has not beendemonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Commr 1988). It would be absurd to
  • Page 17suggest that USCIS or any agency must treat acknowledged errors as binding precedent. SussexEngg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).Furthermore, the AAOs authority over the service centers is comparable to the relationshipbetween a court of appeals and a district court. Even if a service center director has approved anonimmigrant petition on behalf of the alien, the AAO would not be bound to follow thecontradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855,2000 WL 282785, *1, *3 (E.D. La.), ajfd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51(2001). III. CONCLUSIONThe documentation submitted in support of a claim of extraordinary ability must clearly demonstratethat the alien has achieved sustained national or international acclaim and is one of the smallpercentage who has risen to the very top of the field of endeavor.Even if 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 thatconsiders 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 thevery top of the[ir] field of endeavor" and (2) "that the alien has sustained national or internationalacclaim 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 theevidence is not indicative of a level of expertise consistent with the small percentage at the very top ofthe field or sustained national or international acclaim, the AAO need not explain that conclusion in afinal merits determination. 5 Rather, the proper conclusion is that the petitioner has failed to satisfy theantecedent regulatory requirement of three categories of evidence. !d. at 1122.The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and thepetition may not be approved.The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appealwill be dismissed. In any future proceeding, the AAO maintainsORDER: The appeal is dismissed. the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter.~The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir.2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the officethat made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section204(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(1)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, nowusers, is the sole authority with the jurisdiction to decide visa petitions).
  • Examining the Roles of the Adjudicators in the Initial or RemandedProceeding vs That of the Administrative Appellate Body on Review By Joseph P. Whalen (January 30, 2012)A recent case suggested an opportunity to discuss an issue of interest, so, here it goes.Edy Darcelin v. Atty Gen USA, Filed 01/30/12, No. 10-3674 (3rd Cir. Non-precedent) at:http://www.ca3.uscourts.gov/opinarch/103674np.pdf states: “An IJ’s discretion to enlarge the scope of proceedings on remand from the BIA is well-established. If, as here, the BIA does not limit a remand to a specific purpose, the BIA’s remand “is effective for the stated purpose and for consideration of any and all matters which the [IJ] deems appropriate in the exercise of his [or her] administrative discretion . . . .” Johnson v. Ashcroft, 286 F.3d 696, 701 (3d Cir. 2002) (quoting Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978)). The IJ properly exercised his discretion in limiting the scope of the remands to consideration of Darcelin’s eligibility for CAT protection. In this context, Darcelin’s due process rights were not violated.”The principal Third Circuit case cited Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002)dissects and discusses the BIA Precedent Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA1978). The selected passages from Johnson (excerpts shown further below) would likelybe of use to USCIS’ AAO in crafting a few of the points to be made in its upcomingRulemaking. AAO very frequently states that the new decision must be returned forreview on certification, sometimes regardless of outcome and other times only if adverse.Still others after further investigation, inquiry, or specific actions are followed.AAO is much more direct on the issue of retaining jurisdiction but does not frequentlyneed to confine the actions to be taken on remand. In essence, when AAO remands thenthe adjudicator below can start from scratch as AAO will perform full de novo review ifthe case comes back to it whether on appeal or certification (regardless if as ordered byAAO in the written remand order or in the Director’s discretion). On occasion, in specificcontexts or specific cases, AAO is very explicit on what must be done on remand.Specificity is often expressed when an N-600 denial is overturned and a Certificate ofCitizenship must be issued. Other explicit commands have included the issuance of anRFE in order to address something that was overlooked or when the wrong regulationswere used in the adjudication below. That “remand for RFE under correct regulations”situation happened in numerous Special Immigrant religious Worker I-360 petitions whenadjudicators were citing old outdated regulations after they missed a major regulatory Page 1 of 3
  • change. Lastly, one particular situation which is a favorite of mine is when the Directorwants to deny an N-600 for a citizenship claim based on clear and convincing evidence insupport of a finding of statutory ineligibility BUT the citizenship claimant has presenteda copy of a U.S. Passport. In such cases, AAO may command that the Directorcommunicate with the Passport Agency to see if they can and will revoke the erroneouspassport. Such communication being the proper course of action as stated in theAdjudicator’s Field Manual in the first place.Getting back to the pertinence of Johnson, the court stated a few pearls of wisdom: “¶1 Jimmy Johnson petitions for review of a Board of Immigration Appeals ("BIA" or "Board") order reversing a grant of asylum and withholding of deportation based on changed country conditions. ¶2 The BIA held that the Immigration Judge did not have jurisdiction over these claims at the time he considered Johnsons application for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT")1 because the case had been reopened and remanded for the "sole purpose" of considering the CAT claim. The question before us is whether on remand the Immigration Judges jurisdiction was limited to the CAT issue. For the reasons below, we conclude that, in deciding that it was limited, the Board departed without reasonable explanation from its own policy that it established in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978). Accordingly, the Petition for Review will be granted and we will vacate the Boards order and remand for further proceedings consistent with this opinion.” ***** “¶12 In its opinion, the Board began by citing the general rule that "a remand, unless the Board qualifies or limits it for a specific purpose, is effective for the stated purpose and for consideration of any and all matters which the Immigration Judge deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations." Citing Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978) (Boards emphasis). It then pointed out that the standards to reopen for relief under CAT are more easily satisfied than those to reopen for other purposes.” ***** “¶17 We begin our analysis with a discussion of the Boards opinion in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978), in which the Board established the standard for the scope of remand orders in immigration proceedings. While few cases or Board decisions elaborate on Patels standard, and its language is often quoted without elaboration,5 it is widely acknowledged to govern this situation. This is not disputed here: the parties and the Board simply offer competing interpretations of the standard the case sets forth.” “¶18 .... ..... Patel set forth the relevant test as follows: Page 2 of 3
  • ¶19 [W]hen the Board remands a case to an immigration judge for further proceedings, it divests itself of jurisdiction of that case unless jurisdiction is expressly retained. Further, when this is done, unless the Board qualifies or limits the remand for a specific purpose, the remand is effective for the stated purpose and for consideration of any and all matters which the Service officer deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations. ¶20 Id. at 601.” ***** “¶23 Patel itself does not elaborate on the concept of "express retention" of jurisdiction. After setting forth the test, it simply states that the remand order at issue was "not limited or qualified," bypassing analysis of "express retention." And, there is no caselaw discussing how we should interpret this language in this context. We thus turn for guidance to the common definition of "express" as "explicit," in contrast to implicit or inferred. Blacks Law Dictionary, for instance, defines "express" as "[c]lear; definite; explicit; plain.... Made known distinctly and explicitly, and not left to inference." BLACKS LAW DICTIONARY 580 (6th ed. 1990). Other dictionaries give substantially similar definitions. See, e.g., WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 803 (1993) (defining "express" as "directly and distinctly stated or expressed rather than implied or left to inference ... definite, clear, explicit, unmistakable"). ¶24 The most obvious way for a tribunal to "expressly retain jurisdiction" is by stating that it is doing precisely that. In In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 367 (3d Cir.2001), we characterized the district court as having "expressly retained exclusive jurisdiction" over certain settlement proceedings where its order simply stated that it "retain[ed] exclusive jurisdiction as to all matters relating to [settlement] administration." In re Prudential Ins. Co. of Am. Sales Practice Litig., 962 F.Supp. 450, 566 ¶ 10 (D.N.J.1997). And in other situations where the adjective "express" is used, we have viewed it as requiring an actual, stated reference or mention. In Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 141 (3d Cir.2001), for instance, we found no "express determination" that there was no just reason for delay where the district courts order did not use the phrase "no just cause for delay" or any similar statement.”While I generally like to point out that the BIA and AAO are qualitatively different innature, i.e. contexts, and belong to different adjudicatory systems, certain routineprocedural points apply to both. BIA reviews decisions reached in adversarialproceedings involving face-to face opponents in hearings. AAO performs faceless, paper-based reviews of mostly paper-based initial decisions in an inquisitorial system. Thatsaid, there is no need to re-invest the wheel in order to craft an AAO Reform Rule thathas been in the works off and on since 1995. Page 3 of 3