Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 1
Non Precedent AAO Decisions for
Extraordinary A...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 2
work in his area of expertise in the United Sta...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 3
competitive athletics and managing are not the ...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 4
2, 2007 as a B-2 nonimmigrant visitor for pleas...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 5
Jan112012_01B2203.pdf Appeal Dismissed
The peti...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 6
Jan122012_01B2203.pdf Appeal Dismissed
The peti...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 7
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). Spec...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 8
regulation at 8 C.F.R. § 103.5(a)(4) requires t...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 9
to the US Citizen and also might be very benefi...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 10
DISCUSSION: The Director, Texas Service Center...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 11
The above discusses the “one-time” achievement...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 12
established the requisite extraordinary abilit...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 13
This case covers One-Time Achievement; 3 of 10...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 14
beneficiary has achieved sustained national or...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 15
Above is heavy on procedural points and worth ...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 16
the requisite extraordinary ability and failed...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 17
Delegation Number 0150.1 (effective March 1, 2...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 18
[Pediatric Neurologist]
This case looks at com...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 19
No Final Merits Determination deemed necessary...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 20
national or international acclaim through achi...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 21
plain language requirements of each criterion ...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 22
The petitioner seeks classification as an "ali...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 23
the jurisdiction to decide visa petitions).
Ma...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 24
ability" in the athletics, specifically, as a ...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 25
criterion pursuant to the regulation at 8 C.F....
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 26
Apr022012_01B2203.pdf Appeal Dismissed
The pet...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 27
(the Act), 8 U.S.C. § 1153(b)(1)(A), as an ali...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 28
Moreover, the director indicated that the peti...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 29
No argument or evidence.
Apr122012_02B2203.pdf...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 30
Apr182012_01B2203.pdf Approval Withdrawn/Overt...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 31
Apr192012_03B2203.pdf Appeal Dismissed
The pet...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 32
Apr192012_09B2203.pdf Appeal Dismissed
DISCUSS...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 33
Apr202012_01B2203.pdf Appeal Dismissed
The pet...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 34
Submitted 42 days after issuance of the decisi...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 35
Counsel attempted to file the appeal on June 2...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 36
Nationality Act (the Act), 8 U.S.C § 1153(b)(1...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 37
Apr232012_09B2203.pdf Appeal Dismissed
The pet...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 38
that the petitioner submitted comparable evide...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 39
submit an updated Form G-28 within ten calenda...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 40
The petitioner seeks classification as an "ali...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 41
In the director's decision, the director discu...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 42
May022012_04B2203.pdf Appeal Dismissed
This ap...
Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 43
On appeal, counsel asserts that the petitioner...
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
Non precedent aao decisions for extraordinary ability visas 2012 final
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Non precedent aao decisions for extraordinary ability visas 2012 final

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See the change in USCIS' (and AAO's) application of Kazarian after studying the Amicus Briefs.....

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Non precedent aao decisions for extraordinary ability visas 2012 final

  1. 1. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 1 Non Precedent AAO Decisions for Extraordinary Ability (E11) Visas 2012 Compiled 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! Jan052012_02B2203.pdf Appeal Dismissed 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. * * * * * II. Continuing to work in the area of expertise in the United States The statute and regulations require that the petitioner seeks to continue 1 In athletics.
  2. 2. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 2 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,
  3. 3. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 3 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. Jan102012_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.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
  4. 4. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 4 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. Jan102012_02B2203.pdf Appeal Dismissed 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. Jan102012_03B2203.pdf Appeal Dismissed 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. 2 SEE: http://www.slideshare.net/BigJoe5/uscis-foia-release-10-052011
  5. 5. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 5 Jan112012_01B2203.pdf Appeal Dismissed 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. Jan112012_02B2203.pdf Appeal Dismissed 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. * * * * * 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. Jan112012_03B2203.pdf Appeal Dismissed 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, …..
  6. 6. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 6 Jan122012_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.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 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 3 light middleweight professional boxer
  7. 7. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 7 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
  8. 8. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 8 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 Jan172012_02B2203.pdf Appeal Dismissed 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. Jan232012_01B2203.pdf Appeal Dismissed The petitioner seeks classification as an "alien of extraordinary 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
  9. 9. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 9 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. Jan232012_03B2203.pdf Appeal Dismissed 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
  10. 10. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 10 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 Protection Fund Listing of Maryland. Therefore, the AAO does not recognize counsel in this proceeding. Jan252012_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 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. 4 In the arts as an actor (from Nepal). 5 In business.
  11. 11. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 11 The above discusses the “one-time” achievement criterion and overturns some of the director’s favorable findings-of-fact. Jan252012_02B2203.pdf Appeal Dismissed Medical Researcher has a promising future but is not yet of “extraordinary ability”. [in sciences] Feb082012_02B2203.pdf Appeal 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] Feb092012_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 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 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.pdf Appeal 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
  12. 12. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 12 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.pdf Appeal 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. Feb162012_02B2203.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 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]
  13. 13. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 13 This case covers One-Time Achievement; 3 of 10 criteria; and prior O-1 NIV status. Feb212012_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 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. Feb232012_01B2203.pdf Appeal Dismissed 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
  14. 14. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 14 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. Feb232012_02B2203.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 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.pdf Motion 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.
  15. 15. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 15 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. Mar122012_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 the arts. The director determined that the petitioner had not established
  16. 16. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 16 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
  17. 17. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 17 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. Mar122012_04B2203.pdf Appeal Dismissed 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. Mar122012_05B2203.pdf Appeal Dismissed 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……
  18. 18. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 18 [Pediatric Neurologist] This case looks at comparable evidence and includes a pointless Final Merits Determination. Mar132012_01B2203.pdf Appeal Dismissed 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. Mar132012_03B2203.pdf Appeal Dismissed 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.
  19. 19. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 19 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. Mar132012_05B2203.pdf Appeal Dismissed 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
  20. 20. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 20 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 The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Mar162012_01B2203.pdf Appeal Dismissed 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. Mar222012_02B2203.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 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
  21. 21. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 21 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. Mar222012_03B2203.pdf Summarily Dismissed Made no arguments and submitted no brief. Deadline has long passed. Mar262012_02B2203.pdf Appeal Dismissed 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. Mar272012_01B2203.pdf Appeal Dismissed 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”. Mar282012_02B2203.pdf Appeal Dismissed
  22. 22. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 22 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
  23. 23. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 23 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. Mar292012_02B2203.pdf Summarily Dismissed No follow up after 11 months. Mar292012_03B2203.pdf Summarily 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. 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. Mar302012_02B2203.pdf Appeal Dismissed 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
  24. 24. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 24 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. Mar302012_04B2203.pdf Appeal Dismissed In ?business? Mar302012_05B2203.pdf Appeal Dismissed 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
  25. 25. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 25 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
  26. 26. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 26 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-kazria n-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 Nationality Act (the Act or INA), 8 U.S.C. § 1153(b)(1)(A). Apr042012_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 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. Apr042012_02B2203.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
  27. 27. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 27 (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). Apr052012_01B2203.pdf Appeal Dismissed Pages are missing from this decision relating to a "Latin Dance Instructor/Choreographer." Apr052012_04B2203.pdf Appeal Dismissed 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).
  28. 28. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 28 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). I. Intent to Continue to Work in the Area of Expertise in the United States 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
  29. 29. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 29 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.
  30. 30. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 30 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.
  31. 31. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 31 Apr192012_03B2203.pdf Appeal 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. § 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. Apr192012_05B2203.pdf Appeal Summarily Dismissed No brief sent as indicated after six months. Apr192012_06B2203.pdf Appeal Summarily Dismissed No argument or evidence offered. No brief sent as indicated after six months. Nothing but a bunch of whining. Apr192012_07B2203.pdf Appeal Summarily Dismissed No argument or evidence offered. No brief sent as indicated after six months. Nothing but a bunch of whining. Apr192012_08B2203.pdf Appeal Dismissed 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.
  32. 32. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 32 Apr192012_09B2203.pdf Appeal Dismissed 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.
  33. 33. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 33 Apr202012_01B2203.pdf Appeal Dismissed 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
  34. 34. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 34 Submitted 42 days after issuance of the decision. Apr202012_06B2203.pdf Appeal Summarily Dismissed Although the initial denial was not wholly accurate, the appeal didn’t even try to address the item that were cited as grounds for denial. If it had then AAO might have remanded for further processing. Apr202012_07B2203.pdf Appeal Summarily Dismissed 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.
  35. 35. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 35 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. Apr232012_01B2203.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 )(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. Apr232012_04B2203.pdf Appeal Dismissed The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 203(b)(1)(A) of the Immigration and
  36. 36. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 36 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. Apr232012_05B2203.pdf Appeal Dismissed This appears to be a more complete copy of immediate prior decision but redacted differently so read them together. Apr232012_08B2203.pdf Appeal Dismissed 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).
  37. 37. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 37 Apr232012_09B2203.pdf Appeal Dismissed 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. Apr242012_02B2203.pdf Appeal Dismissed A scientist-researcher. Apr252012_01B2203.pdf Appeal Dismissed 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. Apr272012_01B2203.pdf Appeal Dismissed 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
  38. 38. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 38 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
  39. 39. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 39 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. May012012_03B2203.pdf Appeal Dismissed
  40. 40. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 40 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. May022012_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] 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.
  41. 41. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 41 In the director's decision, the director discussed the 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. May022012_03B2203.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 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.
  42. 42. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 42 May022012_04B2203.pdf Appeal Dismissed This appears to be a repeat posting of immediately prior decision. May032012_01B2203.pdf Appeal Dismissed 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
  43. 43. Non-Precedent AAO Decisions EA in 2012 Compiled by Joseph P. Whalen Page 43 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). 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, 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. May092012_01B2203.pdf Appeal Dismissed Molecular or Cell Biology Scientific Researcher

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