Additional AAO decisions for P nonimmigrant petitions since july 20, 2011
 

Additional AAO decisions for P nonimmigrant petitions since july 20, 2011

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Additional AAO decisions for P nonimmigrant petitions since july 20, 2011 Additional AAO decisions for P nonimmigrant petitions since july 20, 2011 Document Transcript

  • Additional AAO Decisions for P Nonimmigrant Petitions Since July 20, 2011 By Joseph P. Whalen (June 10, 2012)The USCIS Administrative Appeals Office (AAO) has jurisdiction over theappeals from decisions on most immigration petitions and applications that areentered by USCIS Service Centers, District, and Field Office Directors.There are numerous types of petitions and applications within the AAO’sjurisdiction, including employment-based immigration petitions, various waivers,legalization, and temporary protected status applications. The AAO producesappellate decisions that provide fair and legally supportable resolutions ofindividual applications and petitions for immigration benefits. These decisionsprovide guidance to applicants, petitioners, practitioners and government officialsin the correct interpretation of immigration law, regulations and policy. Somebecome Precedents pursuant to 8 CFR § 103.3(c) as shown: (c) Service precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings, and upon approval of the Attorney General as to the lawfulness of such decision, the Director of the Executive Office for Immigration Review shall cause such decisions to be published in the same manner as decisions of the Board and the Attorney General. In addition to Attorney General and Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in 8 CFR 103.10(e).The first decision is the second from August 18, 2010, in category D9 which is fora Petition for Nonimmigrant Worker Pursuant to Section 101 (a)(15)(P) of theImmigration and Nationality Act, 8 U.S.C. §1101(a)(l5)(P). There is also a verynew Precedent Decision1 that was released May 15, 2012, for this category.The links show the “date of the decision” the “sequential number of decisions inthat category for that date” by “category” and “INA §”.• Administrative Decisions >• D9 - Artists, Athletes, and Entertainers (P-1, P-2, and P-3)1 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012)http://www.justice.gov/eoir/vll/intdec/vol25/3752.pdf Page 1 of 8
  • Aug182010_02D9101.pdf Summarily Dismissed[Following revocation, which was probably as a result of a challenge to thedecision upon a quality assurance check of the adjudicated case file....]“The petitioner subsequently filed an appeal. On the Form I-290B, Notice ofAppeal or Motion, where asked to provide a statement explaining any erroneousconclusion of law or fact in the decision being appealed, counsel stated: "Wronginterpretation of the law." Counsel indicated that he would submit a brief and/oradditional evidence to the AAO within 30 days. The appeal was filed on June 29,2009. As of this date [over one year later], no additional evidence has beenincorporated into the record of proceeding, and the record will be consideredcomplete.”[The revocation was “based on questions regarding the bona fides of the petitioneras a qualified agent or employer and the petitioners failure to submit certainrequired initial evidence with the petition.”]Aug192010_01D9101.pdf Dismissed as MootBeneficiary’s status extension with change of employer was already approved viaanother petition.Sep172010_01D9101.pdf Dismissed[Not “culturally unique”. They applied for the wrong category because......]“Nothing in this decision should be taken to suggest that the AAO fails torecognize or appreciate the talent the beneficiaries possess, or as an indication thatthey are not highly accomplished musicians. In fact, while this appeal was pending,USCIS granted Mr. Akikawa O-1 status as an alien of distinction in the arts, whichwould appear to be the appropriate visa classification for an artist with hisqualifications, while Ms. Kuwao was granted O-2 classification.”Sep282010_01D9101.pdf DismissedSimple statutory denial and could not satisfy requirements for a waiver. Page 2 of 8
  • Sep302010_02D9101.pdf Rejected as Improperly FiledU.S. Citizenship and Immigration Services (USCIS) regulations specifically limitthe filing of an appeal to an affected party (the person or entity with legal standing)and/or to the partys attorney or representative authorized pursuant to 8 C.F.R.§292. See 8 C.F.R. S103.3(a)(l)(iii)(B). In this matter, although the petition isaccompanied by a Form G-28, Notice of Entry of Appearance by an Attorney orRepresentative, the claimed attorney/representative who signed the Form I-290B,Notice of Appeal or Motion, has not established that she is a licensed attorney oran accredited representative authorized to undertake representations on thepetitioners behalf. See 8 C.F.R. § 292.1. FN2 * * * * *FN2 The regulation at 8 C.F.R. §103.2(a)(3) specifies that a petitioner may berepresented "by an attorney in the United States, as defined in § l.l(f) of thischapter, by an attorney outside the United States as defined in § 292.1(a)(6) of thischapter, or by an accredited representative as defined in § 292.1(a)(4) of thischapter." The representative did not indicate on Form G-28 that she is an attorneyin good standing of the bar of the United States or the highest court of any State,territory, insular possession or the District of Columbia. She also did not indicatethat she is an accredited representative of a religious, charitable, social service orsimilar organization recognized by the Board. The representative marked "Other"and indicated that "Client has signed given fully authority to [REDACTED] torevise and request/obtain any/all information concerning this case.Dec062010_03D9101.pdf Denial Withdrawn, RemandedThe director denied the petition concluding that the petitioner did not establish thatthe sole beneficiary will be performing in the United States as a member of agroup. The director acknowledged that the beneficiary was previously accorded P-lstatus as a member of an entertainment group, but noted that the instant petitionidentifies the beneficiary as the only group member. The director observed thatthe other members of the group may no longer be in the United States andemphasized that the beneficiary cannot be granted P-l status to performservices separate and apart from the group.The petitioner subsequently filed an appeal. The director declined to treat theappeal as a motion and forwarded the appeal to the AAO. On appeal, counselasserts that the internationally-recognized entertainment group, Lianshan Kung FuAcademy, consists of three members, all of whom will continue to perform for thepetitioner in the United States. Counsel asserts that two additional individuals have Page 3 of 8
  • been performing with the beneficiary as members of this group since "at least April21, 2009." Counsel states that the other two group members were not includedon the Form I-129 or supporting documents because USCIS granted thempermanent resident status. Counsel submits a brief and additional evidence insupport of the appeal. * * * * *Upon review, the AAO will withdraw the directors decision dated April 26, 2010,and remand the matter for further review and entry of a new decision.As a preliminary matter, we emphasize that, because the director did not requestadditional evidence prior to issuing her decision, the petitioner had the opportunityto submit additional evidence to the AAO on appeal. Cf. Matter of Soriano, 19I&N Dec. 764 (BIA 1988). The AAO has considered this evidence and finds itinsufficient to establish the beneficiarys eligibility as a member of aninternationally-recognized entertainment group.If it is established through sufficient evidence that the petitioner continues toemploy all three claimed members of the group and that the beneficiary will be inthe United States solely to perform as an entertainer as a member of this group,then the petition may be approved. However, the only evidence submittedregarding the composition of this group is in the form of inconsistent statementsfrom the petitioner, and a contractor agreement that identifies the instantbeneficiary as the groups sole member as of the date of filing.With respect to the petitioners two statements regarding the membership of thegroup, counsel suggests that the petitioner did not need to include the othermembers, or at least believed that it did not need to include the other members ofthe group, because those members were not included in the P-l petition. Theregulations at 8 C.F.R. § 214.2(p)(4)(iii)(B)(2) specifically require the petitioner toprovide a statement listing each member of the group and the exact dates for whicheach member has been employed on a regular basis by the group. Even if the P-1beneficiary is coming to join a U.S. group comprised primarily of United Statescitizens, the petitioner is required to submit a statement to establish thecomposition of the group. A group with only one P-1 member is not exempt frommeeting the evidentiary requirements at 8 C.F.R. § 214.2(p)( 4)(iii)(B)(1) and (2). Page 4 of 8
  • Jan052011_01D9101.pdf Appeal Sustained, Petition ApprovedCounsel emphasizes that the regulations and statute require that the petitionersprograms, rather than the performance venue, be culturally unique. * * * * *Upon review of the record, the AAO finds counsels assertions persuasive. Thepetitioner has provided detailed itineraries which describe the nature and purposeof each of the beneficiarys proposed performances and presentations and providedample evidence to establish that all of the beneficiarys performances andpresentations will be culturally unique events designed to further the understandingof the groups Filipino dance art forms. Furthermore, while the petitioner mayoccasionally perform at a private event or celebration, the record supports a findingthat all of the performances will be culturally unique, regardless of the venue. Thepetitioner is clearly established as a Filipino cultural organization with the solepurpose of performing folk dances from the Philippines. Its performances arecultural events regardless of where they are performed. There is no requirementthat the beneficiary perform with the petitioner solely at venues or events that areconsidered overtly "cultural".Jan102011_01D9101.pdf Dismissed VAWA Appeal misfiledApr052011_01D9101.pdf RejectedA grossly incompetent filing and it was slightly mishandles by USCIS.Apr052011_02D9101.pdf DismissedUpon review, and for the reasons discussed below, the AAO concurs with thedirectors determination that the evidence of record fails to establish that thebeneficiary is qualified for P-l classification as a professional athlete orinternationally-recognized athlete.[Contains a thorough discussion of Public Law 109-463, "Creating Opportunitiesfor Minor League Professionals, Entertainers, and Teams through Legal Entry Actof 2006" (COMPETE Act of 2006), enacted December 22, 2006, which amendedSection 214(c)(4)(A) of the Act, authorizing certain athletes to be admittedtemporarily into the United States to compete or perform in an athletic league,competition, or performance. The COMPETE Act expanded the P-l nonimmigrantvisa classification to include certain athletes who were formerly admitted to theUnited States as H-2B nonimmigrants.] Page 5 of 8
  • Apr052011_03D9101.pdf DismissedForeign language disc jockey is a not “culturally unique” performer.Apr272011_01D9101.pdf Denial Withdrawn, RemandedThe director denied the petition, concluding that the petitioner failed to provideevidence to establish that all of the beneficiaries performances or presentationswould be culturally unique events as required by 8 C.F.R. § 214.2(p)(6)(ii)(C). Thedirector observed that the petitioner provided a vague itinerary and did not clearlyexplain the nature of many of the events in which the beneficiaries would perform. * * * * *Therefore, we conclude that the focus of the directors analysis was inappropriatelybased on a misunderstanding of the nature of the performances and presentations tobe provided by the beneficiaries. The petitioner provided evidence that it offersmartial arts classes year-round, holds, participates in martial arts tournaments, andparticipates in community events in which the schools martial arts instructors andstudents perform. Accordingly, the AAO will withdraw the directors decisiondated April 15, 2010, as the petitioner has overcome the sole grounds for denial. * * * * *The regulation at 8 C.F.R. § 214.2(p)(6)(ii) specifically requires "letters fromrecognized experts attesting to the authenticity of the aliens or groups skills inperforming, presenting, coaching, or teaching the unique or traditional art form andgiving the credentials of the expert, including the basis of his or her knowledge ofthe aliens or groups skill." As a matter of discretion, USCIS may accept expertopinion testimony.FNl USCIS will, however, reject an expert opinion or give it lessweight if it is not in accord with other information in the record or if it is in anyway questionable. Matter of Caron International, Inc., 19 I&N Dec. 791, 795(Commr. 1988). USCIS is ultimately responsible for making the finaldetermination regarding an aliens eligibility for the benefit sought; the submissionof expert opinion letters is not presumptive evidence of eligibility. Id.; see alsoMatter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) ("[E]xpert opinion testimony,while undoubtedly a form of evidence, does not purport to be evidence as to factbut rather is admissible only if it will assist the trier of fact to understand theevidence or to determine a fact in issue. "). * * * * *FN1 Letters may generally be divided into two types of testimonial evidence: expertopinion evidence and written testimonial evidence. Opinion testimony is based onones well-qualified belief or idea, rather than direct knowledge of the facts atissue. Blacks Law Dictionary 1515 (8th Ed. 2007) (defining "opinion testimony"). Page 6 of 8
  • Written testimonial evidence, on the other hand, is testimony about facts, such aswhether something occurred or did not occur, based on the witness directknowledge. Id. (defining "written testimony"); see also id at 1514 (defining"affirmative testimony").Depending on the specificity, detail, and credibility of a letter, USCIS may give thedocument more or less persuasive weight in a proceeding. The Board ofImmigration Appeals (the Board) has held that testimony should not be disregardedsimply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328,1332 (BIA 2000) (citing cases). The Board also held, however: "We not onlyencourage, but require the introduction of corroborative testimonial anddocumentary evidence, where available." Id. If testimonial evidence lacksspecificity, detail, or credibility, there is a greater need for the petitioner to submitcorroborative evidence. Matter of Y-B-, 211&N Dec. 1136 (BIA 1998).Apr282011_01D9101.pdf DismissedThe director noted that, upon review of the itinerary submitted, "it appears thatsome of the events are not culturally unique." The director noted that the itineraryincludes events such as a folk instrument competition, youth performing troupeaudition, photo and painting exhibit, New Years Gala, and a dance summer campthat are "not cultural events to further the understanding of the beneficiaries artform."On appeal, counsel for the petitioner emphasizes that the beneficiaries willparticipate only in martial arts related events and activities and will not participatein other events, such as dance competitions, sponsored by the petitioners Chinesecultural organization.Upon review, the AAO agrees, in part, with counsels assertions. The petitioner hasconsistently indicated that the beneficiaries will be teaching and performingChinese martial arts and there was no basis on which to conclude that they wouldparticipate in the petitioners other Chinese programs, such as visual arts or danceclasses or competitions. Therefore, the focus of the directors analysis wasinappropriately based on a misunderstanding of the nature of the performancesand presentations to be provided by the beneficiaries. The petitioner providedevidence that it offers martial arts classes year-round, holds and participates inmartial arts tournaments, and includes martial arts performances on the programsof some of its Chinese cultural programs and celebrations. Assuming that thepetitioner establishes through submission of the required evidence that the Page 7 of 8
  • beneficiaries martial arts teachings and performances are culturally unique, themartial arts performances listed in the itinerary could be considered culturallyunique events.[Once again, it was emphasized that it is the performances rather than the venueor event that must be “culturally unique.”]Apr282011_02D9101.pdf DismissedA rather lengthy decision (12 pages) dissecting the poor evidence submitted. It isworth reading. Page 8 of 8