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Musings on Extraordinary Ability Visas

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  • 1. Musings On Extraordinary Ability Visas By Joseph P. Whalen (June 14, 2012)On June 13, 2012, the Ninth Circuit Court of Appeals “...adopt[ed] as ...[their]...own the well-reasoned published opinion of the district court, Rijal v. United StatesCitizenship & Immigration Servs., 772 F.Supp. 2d 1339 (W.D. Wash. 2011).” 1Congratulations to District Judge Richard A. Jones in Seattle on this recognitionfor a job well done. I have to agree that the assessment of the petitioner’s case waswell written and implemented the concepts from Kazarian 2 quite appropriately.The District Court Decision of February 22, 2011, recognized that one must firstmeet one of the available “threshold evidentiary burdens”. I disagree only slightly.My area of disagreement is about the number of available thresholds. I see thatthere are actually three rather than only two. Both the Kazarian and Rijal opinionsrecognize only two thresholds and do not address the potential for “comparableevidence” allowed by the implementing regulations at 8 CFR § 204.5(h)(4), whichstates: “If the above standards do not readily apply to the beneficiarys occupation,the petitioner may submit comparable evidence to establish the beneficiaryseligibility.” [Emphasis added.]U.S. Citizenship and Immigration Services’ (USCIS’) Administrative AppealsOffice (AAO) has taken a strict interpretation of the above regulatory language insome of its non-precedential decisions posted online. Here is what they say: “On appeal, counsel argues that "the standards of 8 CFR Section 204(h) do not readily apply to [the petitioners] occupation as a Gospel Recording Artist based in Belize." We are not persuaded by counsels argument. The regulation at 8 C.F.R. § 204.5(h)(l) provides that an alien may file "for classification under section 203(b)(l)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics" (emphasis added). See also section 203(b)(l)(A)(i) of the Act and 8 U.S.C. § 1153 (b) (l)(A)(i). In this case, the petitioner is a gospel recording artist. The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten criteria "do not readily apply to the beneficiarys occupation." The regulatory language precludes the consideration of comparable evidence in this case, as there is no indication that eligibility for visa preference in the petitioners occupation cannot be established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, counsel has submitted evidence addressing four of the ten criteria at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to meet three of these criteria, the plain1 See: Anil Rijal v. USCIS, No. 11-35249 (9th Cir. June 13, 2012), at: http://www.ca9.uscourts.gov/datastore/opinions/2012/06/13/11-35249.pdf2 See: Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (March 4, 2010),at: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdfSee also the withdrawn earlier Kazarian decision of September 4, 2009, at:http://www.ca9.uscourts.gov/datastore/opinions/2009/09/04/07-56774.pdf 1 Musings On Extraordinary Ability Visas
  • 2. language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence.” 3 [Emphasis added.]Aside from that disagreement, the clear recognition that the submission of theminimum initial evidence is merely an “antecedent procedural question” is thekey to improving case preparation and presentation. Judge Jones recognized thatthe initial or prima facie evidence serves the purpose of providing a basis foranswering the broader questions. Judge Jones further recognized that the evidencemust be examined within the appropriate context. “The INA does not define “extraordinary ability.” Abilities in the “sciences, arts, education, business, or athletics” qualify. 8 U.S.C. § 1153(b)(1)(A)(i). “Sustained national or international acclaim” is a hallmark of extraordinary ability, as are achievements that “have been recognized in the field through extensive documentation.” Id. Federal regulations explain that “extraordinary ability” is “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2).” Rijal, 772 F. Supp. 2d. 1339, 1342.Judge Jones remarked in footnote 1, after reviewing and considering the limitedexamples and earlier decisions that were made available to him that “[t]hey revealthat the “extraordinary ability” visa is extraordinarily difficult to obtain, and thatthe task of determining whether an alien has “extraordinary ability” (as opposedto a lesser level of distinction) is also difficult.” How true! It is for these reasonsthat the decision-making process in these cases must be followed more rigidly thanthe petitioners and beneficiaries as well as their counsel might like. Until Kazarian,there was only one actual precedent on topic and it was an administrative decision.Matter of Price, 20 I. & N. Dec. 953 (Acting Assoc. Comm’r 1994) 4 held: An alien seeking immigrant classification under section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A) (Supp. V 1993), has clearly established that he is an alien with extraordinary ability in athletics when he has won such internationally recognized competitions as the 1983 World Series of Golf and the 1991 Canadian Open, ranked ...[high]... 10th on the Professional Golfers Association Tour in 1989, collected ...[high]... earnings in 1991 totaling $714,389, provided numerous affidavits and letters of support from well-known and celebrated golfers and other experts in the field, and received widespread major media coverage for his ability on the golf course. [Emphasis added]3 See: http://www.uscis.gov/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2010/Jan062010_01B3203.pdf4 See: http://www.justice.gov/eoir/vll/intdec/vol20/3241.pdf 2 Musings On Extraordinary Ability Visas
  • 3. The initial decision reached regarding Price’s eligibility was an easy approval,which was then affirmed on certification. Perhaps it was too easy and lead tomistakes. The approval decision was originally entered on March 27, 1992. Thematter was reopened sua sponte for the express and limited purpose of editorialrevisions in advance of publication as a Precedent on December 29, 1994. In thatinitial and still the only Precedent Decision, AAO made a mistake in my opinionthat clouded a proper understanding of the correct approach to the futureadjudication of these cases that has lasted nearly two decades.AAO acting on behalf of the the Acting Associate Commissioner, Examinations 5stated on page 954 of Price that: “The term "extraordinary ability," as used in this section and defined at 8 C.F.R. § 204.5(h)(2) (1994), means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. As provided in 8 C.F.R. § 204.5(h)(3) (1994), such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award) or at least three of the following: (i) Documentation of the aliens .........”By overemphasizing the order in which to view and consider the underlyingquestions, adjudicators began to incorrectly and inappropriately ask the finalquestions first. By initially specifically looking for evidence that showed“sustained acclaim”, “international recognition”, and that the alien was “one of thefew” too soon in the process, they naturally but incorrectly heightened the bar onthe initial threshold. In other words, rather than reserving the final decision untilafter considering the “totality of the evidence”, adjudicators were demanding thateach piece of prima facie evidence standing alone met the requirements to showfull eligibility.In regard to Nick Price, just check out the webpage devoted to him at this wellknown (& pretty well respected) website: http://en.wikipedia.org/wiki/Nick_Price.Because the outcome was “pre-destined” to be an easy approval, the decision wasmade by acknowledging the conclusion first and then sorting through the evidencein order to dot the “i’s” and cross the “t’s”. That is what I believe lead to themisunderstanding of the purpose of the evidence listed in 8 CFR 204.5(h)(3)(i)-(x)and the inappropriate heightening of the initial threshold evidentiary showing.5 The Administrative Appeal Unit (AAU) was reorganized and renamed in a DOJ reorganizationplan under Attorney General Janet Reno in January 1994. 3 Musings On Extraordinary Ability Visas
  • 4. While the incorrect conflated, approach generally still leads to the correctconclusions whether to approve or deny the visa classification, it also lead to quitea few challenges in District Courts. Practitioners who misconstrued its meaningand overemphasized its approach seized upon one District Court case. That initialincorrect approach lead to an incorrect belief that merely meeting the bareminimum initial evidentiary showing or making a prima facie case ensuredapproval and thereby shifted the “burden to disprove” onto INS [now USCIS].Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)6 is especially noted for thefollowing blurb: “Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.”Buletini, supra at 1234.In its Amicus Brief7 to USCIS’ AAO on this topic, AILA 8 asserted the following: “.... Assuming that the EB-1 category even authorizes or requires a “final merits determination,” we submit that the nature and scheme of the analysis articulated by Buletini most closely adheres to the plain meaning of the statute and regulations, and provides the best approach to achieve USCIS’s goals of consistent and transparent adjudication.” At p. 3That assertion aside, Buletini was the first such case to be reviewed by any court.Additionally, it was rendered by a single District Court Judge for abuse ofdiscretion in the following manner rather than setting a precedent as to the futuresole and exclusive framework for adjudication of that brand new visaclassification.Judge Gadola lacked authority to set any precedent. The Judge did specificallyrecognize that “discretion is governed by the situation and circumstances affectingeach individual case”. “There is no exact measure of what constitutes abuse of discretion. It is more than the substitution of the judgment of one tribunal for that of another. Judicial discretion is6 See the full text of the case at:http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=19942082860FSupp1222_11918.xml&docbase=CSLWAR2-1986-2006&SizeDisp=77 AILA InfoNet Doc. No. 11110261. (Posted 11/02/11) at:http://www.aila.org/content/default.aspx?docid=374988 American Immigration Lawyers Association (AILA) is a national organization comprised ofmore than 11,000 lawyers in the field of immigration law throughout the United States. 4 Musings On Extraordinary Ability Visas
  • 5. governed by the situation and circumstances affecting each individual case. Even where an appellate court has power to review the exercise of such discretion, the inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.”Buletini, supra at 1227.The framework for review employed by Judge Jones in the Rijal case wasexplained as shown here: “The parties have chosen to rely on summary judgment motions. On a motion for summary judgment, the court must draw all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must initially show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The court defers to neither party in resolving purely legal questions. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999). Because the court typically makes no finding of fact in determining if an agency’s decision is arbitrary or capricious, APA disputes are usually amenable to resolution by summary judgment.” Rijal, 772 F. Supp. 2d. 1339, 1344 [Emphasis added.]While Judge Jones did not parse each and every piece of evidence in the records,he did consider the process employed by AAO in its decisions below as well as hisown. “..... What awards less prestigious and recognized than the Nobel Prize qualify as major, international awards is a question that the law does not answer. There is little question, moreover, that Congress felt it unnecessary and perhaps inadvisable to define “major” in this context. It entrusted that decision to the administrative process. Turning to that process, the court looks for evidence that USCIS considered the relevant factors and articulated a rational connection between the facts it found and the choice it made. USCIS explicitly considered the awards and all of the evidence Mr. Rijal submitted to support his claim that they were major, international awards. USCIS articulated a rational connection between those facts and its conclusion that his awards were not “major.” May 2009 Dec. at 5-6. Another adjudicator might have come to a different conclusion, but that is irrelevant. Unless the court can conclude that no rational adjudicator 9 would have come to that conclusion, the USCIS did not act9 Please see: Would You Be A Reasonable Factfinder? (Immigration Daily, June 14, 2012) foundat: http://www.ilw.com/articles/2012,0614-whalen.shtm 5 Musings On Extraordinary Ability Visas
  • 6. arbitrarily and capriciously.” Rijal, 772 F. Supp. 2d. 1339, 1345-1346 [Emphases added.]Judge Jones found that the USCIS adjudicator (acting on behalf of the ServiceCenter Director) and AAO erred in their assessments of the evidence. “.... Analyzing each criterion separately, USCIS concluded that Mr. Rijal had not made the requisite showing as to any of them. May 2009 Dec. at 6-11. Mr. Rijal takes issue with each of those conclusions. Before considering the criteria, the court reiterates that satisfying three of them is merely an evidentiary threshold for an alien seeking to prove extraordinary ability. Once he or she has done so, USCIS can proceed to the ultimate inquiry.” Rijal, 772 F. Supp. 2d. 1339, 1346 [Emphases added.]Looking closely at the dates of the various decisions from the AAO as well as thecourts, and it seems that the impact of the revised Kazarian decision had notreached the Appeals Officers who decided the Rijal administrative decisions.AAO along with the petitioner (and counsel) were working under a false premise.Judge Jones noted this as well and summed up the situation observing that: “..... Both Mr. Rijal and the USCIS often seem to assume that satisfying three criteria is the end of the “extraordinary ability” inquiry. They are mistaken. Id. at 1121 (noting that “whether petitioner has provided at least three types of evidence” is merely an “antecedent procedural question”). Rijal, 772 F. Supp. 2d. 1339, 1346 [Emphases added.]Despite the errors made by USCIS in the procedures employed in its analyses,which were based on an incorrect understanding of the regulations those errors,were found harmless in both Kazarian and Rijal. Now that the framework foranalysis has been addressed more broadly in two Ninth Circuit Precedents onextraordinary ability visa eligibility determinations, practitioners need to preparecases accordingly in order to make adjudications of their clients’ cases proceedmore smoothly and swiftly. That’s my two-cents, for now. 6 Musings On Extraordinary Ability Visas

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