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USCIS response to CIS Ombudsman on Kazarian analysis

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  • 1. U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000 ~-~T;.;r 65ii:f::. U.S. Citizenship ~~~) and Immigration ~(-:t..~~,. Services AUG 3 1 2012 120/12.4 Memorandum TO: Debra Rogers Acting Citizenship and Immigration Services Ombudsman FROM: Lori Scialabba~ rru: cSw~ Deputy DirectoY ( SUBJECT: Response to Recommendation 51, Recommendations to Improve the Quality in Extraordinary Ability and Other Employment-Based Adjudications Recommendations The Citizenship and Immigration Services Ombudsman (CISOMB) recommends that U.S. Citizenship and Immigration Services (USCIS): 1. Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulation; and 2. In the interim, provide public guidance on the application of the final merits determination; and 3. In the interim, provide Immigration Services Officers (ISOs) with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions. USCIS Response to Report USCIS thanks the CISOMB for the thorough analysis in its report. USCIS provides responses to the individual recommendations below, but would first like to clarify certain statements and assumptions regarding the guidance and court decisions issued prior to the December 2010 policy memorandum. 1. Existing Regulations Interpreted in a Manner Consistent with Kazarian The CISOMB report, extending arguments raised by some stakeholders regarding the extent of the holding by the Court in Kazarian, notes that USCIS adopted the two-part analysis and final merits determination from the Courts decision, even though the Court itself did not apply theA second 9th circuit case on topic & applying Kazarian was published on June 13, 2012:Rijal v. USCIS which adopted in full the District Court Decision February 22, 2011. www.uscis.gov
  • 2. Response to Recommendation 51, Recommendations to Improve the Quality in ExtraordinaryAbility and Other Employment-Based AdjudicationsPage 2analysis in that case or further elaborate on the final merits determination. Some stakeholdershave further argued that users was wrong to adopt the two-part analysis and final meritsdetermination. They contend that this was not part of the Courts holding.USCIS believes that the Courts references to a final merits determination are not merely dicta;they are a critical part of the rationale for the Courts holding. If the Court had not assumed that Initially,the ultimate assessment of extraordinary ability would occur at some later stage, it might wellhave been unwilling to exclude it from consideration at the evidentiary stage. AAO was proceedingThe Form I-140 policy memorandum is an interpretative policy of the Agency, and one that is to the 2ndconsistent with the approach endorsed by the Ninth Circuit Court of Appeals in Kazarian. The part of theCourt did not apply the two-part analysis because it had no occasion to reach the second stage analysis for(the final merits determination) as it had already found that the petitioner had failed to meet at no goodleast three ofthe antecedent evidentiary criteria. USCIS s interpretation follows from the reason.Courts clear reference to a bifurcated analysis and as such is entirely appropriate. USCIS It wasacknowledges that the Kazarian decision is legally binding only within the Ninth Circuit, but the wasteful ofCourts decision affirms that the two-part approach is at least a permissible interpretation of the resources.existing regulation. Moreover, there is benefit in promoting a consistent, uniform, nationwide In approx.interpretation of the regulation. When users has the opportunity to proceed in a way that April 2012,conforms to the statute, the regulation, and a leading court decision, and makes good sense from AAOa policy standpoint, there is good reason to seize that opportunity. stopped this practice. 2. Prior Agency Statements and District Court CasesIn discussing the background and the guidance prior to the Form I-140 policy memorandum, theCISOMB reiterated the argument that some stakeholders have made pertaining to prior Agencystatements and various U.S. District Court decisions. In essence, the argument is that priorAgency statements and the U.S. District Court in Michigan in Buletini v. INS1 indicated thatsatisfying the antecedent evidentiary prongs was sufficient to establish eligibility for approvaland, therefore, there is no final merits determination or support thereof. This argument,however, relies upon an erroneous reading of the prior Agency statements and Buletini. a. The Weinig LetterThe argument by stakeholders is based first upon a letter issued in 1992 by then Acting AssociateCommissioner of Examinations Lawrence Weinig. The letter stated: The evidentiary lists were designed to provide for easier compliance by the petitioner and easier adjudication by the examiner. The documentation presented must establish that the alien is either an alien of extraordinary ability or an outstanding professor or researcher. If this is established by the meeting three of the criteria for extraordinary aliens or two of the criteria for outstanding professors or researchers, this is sufficient to establish the caliber of the alien.1 860 F. Supp. 1222, 1233 (E.D. Mich. 1994).
  • 3. Response to Recommendation 51, Recommendations to Irilprove the Quality in ExtraordinaryAbility and Other Employment-Based AdjudicationsPage 3 There is no need for further documentation on the question of the caliber of the alien. However, please note that the examiner must evaluate the evidence presented. This is not simply a case of counting pieces of paper.When read closely, this paragraph actually confirms that the documentation must establish thatthe alien has extraordinary ability (or is an outstanding professor, but for simplicitys sake, wewill focus on the former), defined in the regulation as being in the small percentage at the top ofthe field. The sentence starting with "If... " is critical as it represents a contingency and not anautomatic result. So, if extraordinary ability is established by meeting three of the criteria, thenit would be sufficient. And inversely, if extraordinary ability is not established by meeting threecriteria, then that would not be sufficient. Moreover, the letter concludes by noting that ISOs arenot simply "counting pieces of paper." The letter, despite its intended effect, did not eliminateconfusion regarding the proper interpretation and application of the regulatory requirements. b. The Proposed Regulatory ChangeAs noted in the CISOMB report, in 1995, the former Immigration and Naturalization Service(INS) attempted to eliminate the continued confusion through a proposed rule (60 FR 29771) by See note below.adding a clarifying statement into the regulations expressly indicating that simply meeting theevidentiary criteria was not sufficient for approval. Although the report did not explain thecontext or purpose of the proposed rule, it is still useful to note. The Supplementary Informationfrom the proposed rule stated that the proposed rule was to eliminate confusion that had arisenwith regard to the role of the evidentiary criteria. It confirmed that "the evidence listed isintended to be a guideline for the petitioner and the Service to determine extraordinary ability inorder to make the adjudication process easier for both the petitioner and USCIS. The fact that analien may meet three of the listed criteria does not necessarily mean that he or she meets thestandard of extraordinary ability. The Service adjudicator must still determine whether the alienis one of that small percentage who have risen to the very top of his or her field of endeavor."The explanation of the use of the evidentiary criteria was not in regard to the proposed change,but rather was an explanation of the purpose behind the existing structure of the regulations.That explanation was to be incorporated into the regulation in order to eliminate any confusion(similar to the CISOMBs first recommendation in the current report). The proposed rulecontained many other unrelated changes and did not become final. That fact does not change theinterpretation of the existing rule, an interpretation which was most recently reiterated in theForm I-140 policy memorandum. c. The Buletini DecisionAfter the Weinig Letter and the proposed rule, the Court in Buletini supplied further guidance.The Court stated that, in denying the extraordinary ability petition of an alien who had met theinitial evidentiary requirements, ISOs must set forth specific and substantiated reasons for thedenial. That statement in the Buletini holding supports the Kazarian Courts endorsement thatthere is an additional determination, beyond the evidentiary criteria phase. If Bf,lletini stood forthe proposition that meeting the criteria was in and of itself sufficient, as some suggest, thereINS Proposed Rule on Employment-Based Immigrants FR 29771 - 29781 (06/06/1995)
  • 4. Response to Recommendation 51, Recommendations to Improve the Quality in ExtraordinaryAbility and Other Employment-Based AdjudicationsPage 4would have been no need for it to go any further. The additional analysis that Buletini described-i.e., the requirement that the ISO set forth specific and substantiated reasons- is consistentwith Kazarian and the subsequent Form I-140 policy memorandum. Thus, it is reasonable toconclude that Kazarian was actually the logical culmination of this line of district court cases,including Buletini, and did not deviate from the course taken by these lower court cases. A significant change in 3. No Significant Changes to Existing Practice or the Adjudicatory Standard AAOs practicalThe CISOMB report noted that stakeholders have raised concerns before and after the final Form application isI-140 policy memorandum was issued, that the memorandum has not resulted in a clearer seen here.adjudicatory standard, and "Immigration Services Officers (ISOs) report that the I-140 policymemo did little to change their analysis ofl-140 petitions."The fact that ISOs report that the Form I-140 policy memorandum has done little to change theiranalysis is an important point. The relative consistency in the analysis before and after theissuance of the II].emorandum clearly demonstrates that USCIS has always conducted anadditional review after the initial evidentiary criteria review to determine if the petition rises tothe required standard for approval. What has changed in light of Kazarian and the policymemorandum is the fact that ISOs no longer combine these two separate analyses into one.Before Kazarian, ISOs were making what is now the final merits determination at the same timeas they were reviewing the initial evidence. It was that conflated approach that the Courtrejected. The Courts holding endorsed the existence of a final merits determination, and USCISagrees that this two-part approach is the best interpretation of the statute and correspondingregulation.USCIS Response to Recommendations 1. Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulation.USCIS does not concur with this recommendation. The agencys adjudicative approach isspelled out in clear terms in the Form I-140 policy memorandum, which is consistent with theapproach endorsed by the Ninth Circuit, and indeed required under the current regulations.Additionally, USC IS would like to note that the Administrative Procedure Act (AP A) does notrequire formal notice-and-comment rulemaking in this instance. The policy memorandum makesno substantive changes. As discussed above, the regulation already contemplates (or at least canvery plausibly be interpreted as contemplating) a two-fold inquiry. The policy memorandumsimply makes that two-part process explicit. The policy memorandum also specifies thechronological order in which the two determinations are to be made; that is an addition, but onlya procedural one. And the policy memorandum specifies the preponderance of the evidencestandard of proof, but that specification is not a change; it has long been the applicable standardin visa petitions generally. See Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 201 0); MatterofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997).
  • 5. Response to Recommendation 51, Recommendations to Improve the Quality in ExtraordinaryAbility and Other Employment-Based AdjudicationsPage 5Of course, USC IS can use the AP A formal rulemaking procedure even when it is not legallyobligated to do so. AP A formal rulemaking proc~dures, however, entail long delays, and in thisinstance, we saw no significant countervailing benefits. Clarity and consistency are achieved inthis policy memorandum just as they could be achieved in a regulation or an AdministrativeAppeals Office (AAO) precedent decision. The AAO has, in fact, already taken steps towardsthe issuance of a precedent decision, which could be used to clarify the standard and the finalmerits determination. The AAO requested briefs on the nature of the "final meritsdetermination" and how the AAO should apply this analysis to extraordinary ability visapetitions filed pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act. Whilethe AP A notice-and-comment procedure offers useful opportunity for public input, US CIS wasable to receive similar feedback through the solicitation of amicus briefs and then by followingup with a public engagement that was widely attended and similarly valuable.USCIS received nine amicus briefs, which the AAO has been studying. USCIS soughtpermission from all individuals and entities who submitted amicus briefs to post them publicly.We are currently preparing copies of the briefs for posting from those who consented. The AAOwill make a recommendation to users leadership regarding a precedent decision in the nearfuture. Five briefs were posted in May 2012 (by mistake) before this response memo was signed. 2. In the interim, provide public guidance on the application of the final merits determination.USCIS concurs in principle with this recommendation. USCIS believes that its Form I-140policy memorandum provides appropriate guidance to ISOs and the public on the application ofthe final merits determination. As noted above, the AAO has sought briefs on the nature of thefinal merits determination with the goal of issuing a precedent decision. If a precedent decisionis issued, it will be available to the public and will serve as binding guidance for ISOs in theiradjudication. · 3. In the interim, provide Immigration Services Officers (ISOs) with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.USCIS concurs with this recommendation and believes it is important to train ISOs on thepreponderance ofthe evidence standard for adjudicating all applications and petitions. TheOffice of Human Capital and Training and the Office of the Chief Counsel have been working todevelop training that will provide specific examples for many immigrant and nonimmigrantclassifications, to include aliens of extraordinary ability, outstanding professors and researchers,and aliens of exceptional ability. USCIS piloted the use of these training materials in its BASICofficer training course in February and will finalize the materials for broader use in the thirdquarter ofFY2012. Once finalized, USCIS will make publicly available via USCIS.gov theBASIC training material related to the preponderance of the evidence standard. We welcomeany feedback stakeholders may have on the materials.While the preponderance standard is the generally applicable standard, it is onlyunless stated otherwise. It is noted that certain aspects of eligibility criteria in variouscontexts is higher or lower and/or may be tied to "specific evidence" alone.
  • 6. ll.S. llcparlrncnl of Homeland Sccuritj U.S. Cilirenship and Immigration Sen·ic·cs Administrative Appeals Office ( AAO) 0 ~ /." ,r~ r .~·_, _,~.:~ ~~) 20 lvlas~achw.. ctts Ave., N.W., MS 2090 ~ ~.1 - ..---:f.~ 7~~,.-..-- r" ,.. ~. ·- .~_;--··· WashinQlon. DC :2052!-2090 -•·" U.S. Citizenship and Immigration plJBLlCCOPY Serviceshttp://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2012/Apr022012_01B2203.pdfCLICK HERE FOR CLEAN COPY OF AAO POSTED DECISION. DATE: APR 0 2 2012 Office: NEBRASKA SERVICE CENTER FILE: INRE: Petitioner: Beneficiary: PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) ON BEHALF OF PETITIONER: In my opinion, the approach taken in this AAO Decision is highly improved over earlier post-Kazarian decisions. It is the first AAO Decision I have seen that does not go beyond what is necessary. In other words, since the antecedent procedural step of presenting the minimum initial or prima facie evidence was not satisfied, there was no need to proceed to an unecessary "Final Merits INSTRUCTIONS: Determination" or qualitative analysis and evaluation. Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, By Joseph P. Whalen at 12:18 pm, Oct 10, 2012 ~ Perry Rhew · e-mail me at: joseph.whalen774@gmail.com Chief, Administrative Appeals Office www.uscis.gov
  • 7. DISCUSSION: The employment-based immigrant visa petition was denied by the Director,Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal.The appeal will be dismissed.The petitioner seeks classification as an employment-based immigrant pursuant to section203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as analien of extraordinary ability in athletics. The director determined that the petitioner had notestablished the requisite extraordinary ability and failed to submit extensive documentation of hissustained national or international acclaim. As will become clear, the Director erred but it was harmless. The conclusion is correct but the process employed was not.Congress set a very high benchmark for aliens of extraordinary ability by requiring through thestatute that the petitioner demonstrate the aliens "sustained national or international acclaim" andpresent "extensive documentation" of the aliens achievements. See section 203(b)(1)(A)(i) of theAct and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states thatan alien can establish sustained national or international acclaim through evidence of a one-timeachievement of a major, internationally recognized award. Absent the receipt of such an award, theregulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through(x). The petitioner must submit qualifying evidence under at least three of the ten regulatorycategories of evidence to establish the basic eligibility requirements.On appeal, counsel asserts that the petitioner meets at least three of the ten regulatory categories ofevidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of hisextraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). The AAOacknowledges that the standard of proof is preponderance of the evidence, as noted by counsel onappeal. The "preponderance of the evidence" standard, however, does not relieve the petitionerfrom satisfying the basic evidentiary requirements required by the statute and regulations.Therefore, if the statute and regulations require specific evidence, the petitioner is required tosubmit that evidence. See section 203(b )(1 )(A)(i) of the Act, 8 U .S.C. § 1153(b )(1 )(A)(i), and8 C.F.R. §§ 204.5(h)(2) and (3). In this matter, the documentation submitted by the petitioner failsto demonstrate by a preponderance of the evidence that he has achieved sustained national orinternational acclaim. See also Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), n.7.For the reasons discussed below, the AAO will uphold the directors decision. I. LAWSection 203(b) of the Act states, in pertinent part, that: (1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C): (A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
  • 8. Page 3 (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the aliens entry into the United States will substantially benefit prospectively the United States.U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and NaturalizationService (INS) have consistently recognized that Congress intended to set a very high standard forindividuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 51 Cong., 2dSess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability"refers only to those individuals in that small percentage who have risen to the very top of the field ofendeavor. !d.; 8 C.F.R. § 204.5(h)(2).The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the aliens sustainedacclaim and the recognition of his or her achievements in the field. Such acclaim must be establishedeither through evidence of a one-time achievement (that is, a major, international recognized award)or through the submission of qualifying evidence under at least three of the ten categories of evidencelisted at 8 C.F.R. § 204.5(h)(3)(i)-(x).In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of apetition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Althoughthe court upheld the AAOs decision to deny the petition, the court took issue with the AAOsevaluation of evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimateconcerns about the significance of the evidence submitted to meet those two criteria, those concernsshould have been raised in a subsequent "final merits determination." !d. at 1121-22.The court stated that the AAOs evaluation rested on an improper understanding of the regulations.Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "theproper procedure is to count the types of evidence provided (which the AAO did)," and if thepetitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed tosatisfy the regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122(citing to 8 C.F.R. § 204.5(h)(3)).Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then consideredin the context of a final merits determination. In this matter, the AAO will review the evidence under1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirementsbeyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi).
  • 9. Page 4the plain language requirements of each criterion claimed. As the petitioner did not submit qualifyingevidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfythe regulatory requirement of three types of evidence. !d. II. INTENT TO CONTINUE WORK IN THE AREA OF EXPERTISE IN THE U.S.The statute and regulations require that the petitioner seeks to continue work in his area ofexpertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C.§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). On the Form I-140, Immigrant Petition for AlienWorker, in Part 6, "Basic Information About the Proposed Employment," the petitioner lists hisjob title as "Fencing Coach." Subsequent to his arrival in the United States in 2006, the recordreflects that the ner has worked as an petitioner submitted a stating: "We, , petitioned and received an 0-1visa for [the petitioner] in 2006. He has been our Assistant Fencing Coach since that time. Wesupport his desire to have permanent residency so that he may continue to ... work in the U.S. asan elite fencing coach." Based on the letter from the president of the OFA, the petitionersongoing employment as a fencing coach after his arrival in this country in 2006, and theinformation provided on the Form 1-140, the record is clear that the petitioner intends to continueto work in the area of coaching in the United States.Aside from documentation establishing the petitioners intention to continue to work in theUnited States as a fencing coach, the petitioner submitted documentation pertaining to hisathletic achievements as a fencing competitor in the 1990s. There is no documentary evidenceshowing that the petitioner has competed nationally or internationally as a fencer since that timeperiod. While a fencing competitor and a coach may share knowledge of the sport, the two relyon very different sets of basic skills. Thus, competitive athletics and coaching are not the samearea of expertise. This interpretation has been upheld in Federal Court. In Lee v. I.N.S., 237 F.Supp. 2d 914 (N.D. Ill. 2002), the court stated: It is reasonable to interpret continuing to work in ones "area of extraordinary ability" as working in the same profession in which one has extraordinary ability, not necessarily in any profession in that field. For example, Lees extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach.!d. at 918. The court noted a consistent history in this area. While the record demonstrates that thepetitioner intends to continue working as a fencing coach, there is no evidence indicating that heintends to compete as fencer in the United States. The AAO acknowledges the possibility of analiens extraordinary claim in more than one field, such as a coaching and competitive fencing, butthe petitioner must demonstrate "by clear evidence that the alien is coming to the United States tocontinue work in the area of expertise." See 8 C.F.R. § 204.5(h)(5). In this case, there is nodocumentary evidence establishing that the petitioner intends to continue working in the UnitedStates as a competitive fencer. Accordingly, the petitioner must satisfy the statutory requirement "Clear Evidence" is more than by a More speaks to the quality and "preponderance". value as to persuasiveness alone and NOT to quantity at all.
  • 10. Page 5at section 203(b)(1)(A)(i) of the Act as well as the regulations at 8 C.F.R. §§ 204.5(h)(2) and (3)through his achievements as a coach.USCIS recognizes that there exists a nexus between competing and coaching in a given sport. Toassume that every extraordinary athletes area of expertise includes coaching, however, would betoo speculative. To resolve this issue, a balanced approach is appropriate when reviewing theevidence of record. Specifically, in a case where an alien has achieved recent national orinternational acclaim as a competitive athlete and has sustained that acclaim in the field ofcoaching at a national level, the AAO can consider the totality of the evidence as establishing anoverall pattern of sustained acclaim and extraordinary ability such that the AAO can conclude thatcoaching is within the aliens area of expertise. However, as the petitioner in the present matterhas had an extended period of time to establish his reputation as a coach beyond the years in whichhe successfully competed as an athlete in 1990s, the petitioner must demonstrate his extraordinaryability as a coach. III. ANALYSIS A. Evidentiary CriteriaThe petitioner has submitted documentation pertaining to the following categories of evidenceunder 8 C.F.R. § 204.5(h)(3). 2 Documentation of the aliens receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.The petitioner submitted an August 30, 2006 letter"[The "tioner greatest successes were w ........0 Furthermore, he competed in the Olympic Games inwas the winner of •••••••ll!!l!!!!l!!l!!!!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!~ The pe ti ti one r also submittedan August 16, 2006 letter from the stating that he competedfor s team won 3 place in The letter also states that the petitioner was the Rather than submitting primary evidence of his prizes andawards from the preceding fencing competitions, the petitioner instead submitted letters attesting totheir existence. Going on record without supporting documentary evidence is not sufficient forpurposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec.158, 165 (Commr 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (ReglCommr 1972)). A petition must be filed with any initial evidence required by the regulation.8 C.F.R. § 103.2(b)(1 ). The nonexistence or other unavailability of primary evidence creates apresumption of ineligibility. 8 C.F.R. § 103.2(b )(2)(i). According to the same regulation, onlywhere the petitioner demonstrates that primary evidence does not exist or cannot be obtained may2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in thisdecision.
  • 11. Page 6 the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not exist, the petitioner must submit an original written statement on letterhead from the relevant authority indicating the reason the record does not exist and whether similar records for the time and place are available.~)(2)(ii). The August 16, 2006 letter from the- and the August 30, 2006 letter from the comply w1th the preceding regulatory requirements.Regardless, the "field of endeavor" for which classification is sought is coaching. There is noevidence indicating that the petitioner seeks to work in the United States as a competitive fencer.Awards resulting from the petitioners athletic victories as a fencing competitor during the 1990scannot be considered evidence of his national recognition as a coach. As previously discussed, thestatute and regulations require that the petitioner seeks to continue work in his area of expertisein the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(1)(A)(ii); 8C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914. Accordingly, awards wonby the petitioner in national or international fencing competitions do not meet the elements of thisregulatory criterion for purposes of establishing his extraordinary ability as a coach.On March 15, 2010, the director requested the petitioner to submit evidence of nationally orinternationally recognized prizes or awards for excellence that he "received as a fencing coach."In response to the directors request for evidence (RFE), counsel asserts that the director shouldconsider the gold medals and other awards won by fencers coached by the petitioner as evidencefor this regulatory criterion. Counsel further states: There are no fencing coach recognitions in the United States awarded by the national governing body. Some nations ... recognize their top fencing coaches by providing a cash award if their fencers win the World Championships or Olympics. However, there are currently no awards in the United States dedicated to honoring fencing coaches.Without documentary evidence to support the claim, the assertions of counsel will not satisfy thepetitioners burden of proof. The unsupported assertions of counsel do not constitute evidence.Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec.1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The AAOcannot ignore that the documentation submitted by the petitioner shows that national awards doexist for · coaches. For instance the itioner submitted a November 11letterU.S. Olympic Committee forRFE included a "Biography was named the In recognition of ground-breaking contributions to fencing United States, the U. Association presented him with the
  • 12. Page 7 his excellent results at the international level. The petitioner also submitted an. ."History" document stating: who was recently named the Coach of the Year in fencing" by the United States Fencing Coaches Association. Thus, counsels statement that there are "no awards in the United States dedicated to honoring fencing coaches" appears to be incorrect. Unh and there is no evidence showing that the petitioner has received nationally recognized prizes or awards for excellence in coaching.Regarding counsels assertion in response to the RFE that the director should consider the goldmedals and other awards won by fencers coached by the petitioner as evidence for this regulatorycriterion, the AAO notes that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i)requires documentation of "the aliens receipt" of nationally or internationally recognized prizesor awards for excellence in the field of endeavor. Prizes or awards received by individuals otherthan the petitioner himself do not meet the plain language requirements of the regulation."[N]either USCIS nor an AAO may unilaterally impose novel substantive or evidentiaryrequirements beyond those set forth at 8 C.F.R. § 204.5." See Kazarian v. USCIS, 596 F.3d at1121 (citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008)). Medalsreceived by the petitioners students in fencing competitions do not equate to his receipt of thoseawards. Nevertheless, the awards received by athletes the petitioner has coached will not beignored and shall be considered later in this decision under the category of evidence at 8 C.F.R.§ 204.5(h)(3)(v).As there is no evidence demonstrating that the petitiOner has received nationally orinternationally recognized prizes or awards for excellence in coaching, the petitioner has notestablished that he meets the plain language requirements of this regulatory criterion. Published material about the alien in professional or major trade publications or other major media, relating to the aliens work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation.:1 See http://usfca.org/, accessed on March 26, 2012, copy incorporated into the record of proceeding.
  • 13. Page 8In general, in order for published material to meet this criterion, it must be primarily about thepetitioner and, as stated in the regulations, be printed in professional or major trade publications orother major media. To qualify as major media, the publication should have significant national orinternational distribution. Some newspapers, such as the New York Times, nominally serve aparticular locality but would qualify as major media because of significant national distribution, 4unlike small local community papers.In submitted ptioned photographm that identifies him and eight others, but theauthor of the material was not provided and there is no circulation evidence showing that qualifies as a form of major media. The plain language of the regulation at8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the alien in professional or majortrade publications or other major media" including "the title, date and author of the material." Thepreceding captioned photograph does not meet the requirements of this regulatory criterion.The petitioner submitted a December 14, 2000 article entitled- but the name of the publication and the author of the material were not identified asrequired by this regulatory criterion. Further, the article, which only briefly mentions thepetitioner in passing, is not about him. Instead, the article is about the competitive fencingaccomplishments of the petitioners brother-and fellow club memThe plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the publishedmaterial be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at*1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about theactor). Moreover, there is no circulation evidence showing that the article was in a professional ormajor trade publication or some other form of major media.~er submitted an article in entitled- but the author of the material was not · as the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the article is not about the petitioner and there is no circulation evidence showing the article was printed in a professional or major trade publication or some other form of major media.The petitioner submitted a - article entitled on top," but the name of thepublication and the author of the material were not identified as required by this regulatorycriterion. Further, the article is not about the petitioner. Instead, the article is about thecompetitive fencing accomplishments of the petitioners brother and fellow clubmembers Moreover, there is no ·--~~·~ .. u· or major trade publication or4 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. Forexample, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County,Virginia, for instance, cannot serve to spread an individuals reputation outside of that county.
  • 14. Page 9The petitioner submitted an article entitled but thename of the publication, the author of the article, and the date of the material were not identifiedas required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, thearticle is not about the petitioner and there is no circulation evidence showing the article was printedin a professional or major trade publication or some other form of major media.The petitioner submitted an article entitled but the name ofthe publication, the author of the article, and the date of the material were not provided asrequired by this regulatory criterion. Further, the article is not about the petitioner and there is nocirculation evidence showing the article was printed in a professional or major trade publication orsome other form of major media.The petitioner submitted a captioned newspaper photograph from 2000 entitled butname of the newspaper and the author of the material were not identified as required by the plainlanguage of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the material is not about thepetitioner and there is no circulation evidence showing that it was printed in a professional or majortrade publication or some other form of major media. Accordingly, the preceding captionedphotograph does not meet the plain language requirements of this regulatory criterion. entitled includes a single sentence mentioning the petitioner. A pressrelease is a written communication directed at the news media for the purpose of announcinginformation claimed as having news value rather than "published material ... in professional ormajor trade publications or other major media." The AAO cannot conclude that a press release,which is not the result of independent media reportage and which is sent to journalists in order toencourage them to develop articles on a subject, meets the plain language requirements of thisregulatory criterion.The petitioner submitted additional articles in the German language (RFE response, Exhibit 15)that appear to discuss his achievements as an athlete in the 1980s and 1990s, but he failed tosubmit certified English language translations of the articles as required by the regulation at8 C.F.R. § 103.2(b)(3). Any document containing foreign language submitted to USCIS shall beaccompanied by a full English language translation that the translator has certified as completeand accurate, and by the translators certification that he or she is competent to translate from theforeign language into English. !d. Further, none of the preceding articles appear to meet all ofthe requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). For example, the articles weredeficient in that they did not identify the author and they lacked evidence that they werepublished in major media. Moreover, the plain language of this regulatory criterion requires thatthe published material be "about the alien ... relating to the field for which classification issought." In this matter, the "field for which classification is sought" is coaching. The AAOcannot conclude that the Exhibit 15 articles relate to the petitioners work as a coach. Aspreviously discussed, the statute and regulations require that the petitioner seeks to continue workin his area of expertise in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.C.§ 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914.Accordingly, published material about the petitioners accomplishments as a competitive fencer
  • 15. Page 10does not meet the elements of this regulatory criterion for purposes of establishing his extraordinaryability as a coach.In light of the above, the petitiOner has not established that he meets the plain languagerequirements of this regulatory criterion. Evidence of the aliens original scient[fic, scholarly, artistic, athletic, or business- related contributions of major significance in the field.The petitioner submitted letters of support from fencing experts discussing his accomplishmentsas a coach. states: to and to the European Team n 2001. In late 1990s and early 2000s, I had an exceptional opportunity to observe and admire [the petitioners] coaching abilities at . . in Germany, where the U.S. National Womens Sabre Team used to hold its European training camps between World Cup Tournaments. * * * A few years before the 2008 Beijing Olympic Games, I began searching for an Assistant Coach to ensure that the OFAs top fencers were ready to defend their medals and take new ones at the upcoming Olympics. * * * Although [the petitioner] was my first choice, it was by no means certain whether he would be willing to leave where he used to be - and depart Germany in order to assist me in training American fencers at * * * Since [the petitioner] joined the medal count has increased by eleven (11) new medals, rising from 37 to a total of 48 medals in only three years. Working as a coaching team with [the petitioner] allows both of us to bring out the best in our fencers because our respective fencing styles are different but complementary to one another. The fencers greatly benefit from being exposed to this diversification in
  • 16. Page 11 training sess~able to adapt and use various techniques when fighting their opponents. ~with whom [the petitioner] worked particularly closely in preparation for her national and international competitions, has increased her personal medal count from eight (8) to fourteen (14) since [the petitioner] joined t h e · · ·states: I feel that my work with [the petitioner] in the two years leading up to the Olympic games in Beijing was crucial to my performance and I do not believe I could have made it to the medal stands without his help, support and kindness. [The petitioner] and I had private lessons, worked out together and he coached me during practice bouts. Director of Programs,-.,tates: Very few Olympic athletes have the ability to translate what they have learned as exceptional athletes into being a high caliber, elite coach. [The petitioner] has done that in Germany where he devel d four outstan German fencers to the level where they could win dent at the to a become t h e - [The petitioner] was hired b y - specifically to help the club train and prepare our top fencers for ~mpics. In just two short years of working closely as a personal coach to - · .. he became a crucial reason for • • • • • • • medal performance. . . . In addition to - he also provided tactical training advice and assistance to ... [The petitioner] not only had these two stellar athletes he assisted but also has coached other fencers of note. made it in two intensive years of work with to the top 3 rankings in the U.S. and was able to compete at the ·onships. · also played an active and critical role in · - took states: During my business trips to the had the opportunity to observe [the petitioner] as a fencing coach, both in through accomplishments of his students. Among them are a member of the German nat10 team, many other top finalists of the biggest tournaments in the Fencing World Cups series. fencing team has several outstanding athletes who
  • 17. Page 12 ] in Oregon. Among them · states: I have known [the petitioner] for 5 years. I first met him in 2004 when I attended a training camp at the Olympic Training Center in Tauberbischoffsheim, Germany. As a member of the U.S. national fencing team I have trained often at this very well equipped fencing center as my teammates and I traveled throughout Europe between our World Cup competitions. I also spent time in Tauberbischoffsheim for my training preceding the •llil•ll!!l!!!!l!!!!l!!!!l!!l!!!!l!!i!l!!l!!!!l!!!!l!!!!l!!!!l!!!!l!!~~~~~~ At this time the ti one r] was the and so I worked Two years ago, [the petitioner] came to Portland, Oregon as he was hired to be an Assistant Fencing Coach at my club, the Since that time and during my training and leading up to the Beijing Olympic Games, I worked closely 5 days a week with [the petitioner] and my other personal coach to prepare for the Olympic Games. I attribute much of my success to his expertise, coaching, guidance, and support he provided me during this period. states that the expenenceskilled person at the international level in his profession." states: "[The petitioner] possesses extensive training as a coach with us mternational experience." varsity fencing team, states: [The petitioner] is one of the most renown [sic] fencing coaches on the international fencing scene today. His own fencing record, his experience as a fencing coach to the and most of all his particular teaching technique make him one of the foremost masters of our sport in the world today .... [The petitioners] international achievements include training of winners and medalists of Olympic Games, World, and European Championships. In spite of his relatively young age he is instrumental in teaching coaching cadres for one of the most prominent fencing powers in the World. womens and mensvarsity fencing team, states: since many of [the petitioners] students have achieve championship titles. Among these students, [the petitioner] coached
  • 18. Page 13 [The petitioner] retired from active fencing deciding to become a saber fencing coach, focus his time on other athletes. To date, his has accumulated ten years of coaching experience at the and a number of · ssive results throu his students. Most ner] worked as a trainer for the youth where he coached the sabre fencer •11111111111111111111111111111111111111111111111111111111111111 th In the meantime he also acted on behalf of the as a discipline trainer for the mens sabre juniors. states: finished his active career, [the petitioner] worked as a coach for t h e - and passed his large experience and knowledge on to young the cadre athletes who were coached him. Thus he led the and [The petitioner] worked as a trainer at the and passed on his broad experience to the young fencers, as we
  • 19. Page 14In support of the above references statements, the petitioner submitted documentary evidence ofthe medals, competitive results, and rankings of the fencers coached by him. The AAO findsthat the preceding documentation is sufficient to demonstrate that the petitioner meets thisregulatory criterion as a coach. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.The preceding letters of support and further evidence in the record (such as the medal counts forthe petitioners fencers) demonstrate that he has performed in a critical coaching role fordistinguished organizations such as the - a n d theAccordingly, the AAO affirms the directors finding that the petitioner meets the plain languagerequirements of this regulatory criterion. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.The petitioner initially submitted an October 30, 2006 "Letter of Agreement" executed by himand-stating: - w i l l pay you a minimum yearly wage of $35,000 payable on a monthlybasis at the end of each calendar month. - m a y also pay you additional bonuses based onyour performance in the teaching of your classes, camps, and individual lessons and other-programs."In response to the directors RFE, the petitioner submitted a September 1, 2009 "Letter ofAgreement stating: -will pay you a minimum yearly wage of$60,000 at the end of each calendar month. - m a y also pay youadditional bonuses based on your performance in the teaching of your classes, camps, andindividual lessons and other . . programs." The September 1, 2009 "Letter of Agreement"was executed subsequent to the petitions February 19, 2009 filing date. Eligibility must beestablished at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec.45, 49 (Regl Commr 1971). Accordingly, the AAO will not consider the September 1, 2009"Letter of Agreement" in this proceeding.The petitioners response included his 2009 Form 1099-MISC, Miscellaneous Income, and his2009 Form W-2, Wage and Tax Statement, from the OFA reflecting that he received totalcompensation of $87,465 in 2009. The petitioner submitted additional Forms 1099-MISCshowing that t h e - paid him $70,929.52 in 2007 and $69,910 in 2008. As evidence that thepetitioner earns "a high salary or other significantly high remuneration for services, in relation toothers in the field," the petitioner submitted Economic Research Institute salary survey results forthe position of "Coach Athletic" and the "Job Group/Class" of "Fitness Trainers and AerobicsInstructors" in the area reflecting a "20 10 Trended Mean"(emphasis added) salary reliance on "mean" salar data relating to"Fitness Trainers and Aerobics Instructors" is not a properbasis for comparison for multiple reasons. First, the petitioner must submit evidence showing
  • 20. Page 15that he has earned a "high" salary or other "significantly high" remuneration in relation to others inthe field, not simply a that is above in the field. Second, the petitioners relianceon salary data limited to is not an appropriate basis forcomparison in demonstrating that his earnings constitute a high salary or other significantly highremuneration in relation to coaches in the field working outside of those three localities. Third, thepetitioner has not established that the preceding salary survey results for "Fitness Trainers andAerobics Instructors" are relevant to his occupation of fencing coach. The record is void ofearnings data showing that the petitioner has received a "high salary" or "significantly highremuneration" in comparison with those performing similar work. See Matter of Price, 20 I&NDec. 953, 954 (Assoc. Commr. 1994) (considering professional golfers earnings versus otherPGA Tour golfers); see also Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (consideringNHL enforcers salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). Inthe present matter, the documentary evidence submitted by the petitioner does not establish that hehas received a high salary or other significantly high remuneration for services in relation to otherfencing coaches. Accordingly, the petitioner has not established that he meets the plain languagerequirements of this regulatory criterion. B. SummaryThe petitioner has failed to demonstrate that he satisfies the antecedent regulatory requirement ofthree types of evidence. C. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4)On appeal, counsel states: "To the extent that any of the letters, articles, medal counts, or otherevidence do not satisfy the enumerated criteria for this unique occupation, it constitutes othercomparable evidence of extraordinary ability under 8 C.F.R. § 204.5(h)(4)." The regulation at8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the tencategories of evidence "do not readily apply to the beneficiarys occupation." Thus, it is thepetitioners burden to demonstrate why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are notreadily applicable to the aliens occupation and how the evidence submitted is "comparable" to thespecific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The regulatory languageprecludes the consideration of comparable evidence in this case, as there is no indication thateligibility for visa preference in the petitioners occupation cannot be established by the tencriteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable tosatisfy the plain language requirements of at least three categories of evidence at 8 C.F.R.§ 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission ofcomparable evidence. Counsels appellate brief does not explain why the regulatory criteria arenot readily applicable to the petitioners occupation. For instance, counsel does not explain why thepublished material, judging, and high salary categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iii),(iv), and (ix) are not readily applicable to coaching. Moreover, counsel fails to explain how theletters of support, articles, medal counts, and other unspecified evidence are "comparable" to anyspecific objective evidence required at 8 C.F.R. §§ 204.5(h)(3)(i) - (x). The AAO notes that theletters of support were considered under the criteria at 8 C.F.R. §§ 204.5(h)(3)(v) and (viii), the
  • 21. Page 16published articles were considered under the criterion at 8 C.P.R. § 204.5(h)(3)(iii), and the medalcounts for the petitioners fencers were considered under the under the criteria at 8 C.P.R.§§ 204.5(h)(3)(v) and (viii).The opinions of experts in the field are not without weight and have been considered in theAAOs discussion of the categories of evidence at 8 C.P.R.§§ 204.5(h)(3)(v) and (viii). USCISmay, in its discretion, use as advisory opinions statements submitted as expert testimony. SeeMatter of Caron International, 19 I&N Dec. 791, 795 (Commr 1988). However, USCIS isultimately responsible for making the final determination regarding an aliens eligibility for thebenefit sought. !d. The submission of letters from experts supporting the petition is notpresumptive evidence of eligibility; USCIS may evaluate the content of those letters as towhether they support the aliens eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&NDec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidenceas to "fact"). Thus, the content of the experts statements and how they became aware of thepetitioners reputation are important considerations. Even when written by independent experts,letters solicited by an alien in support of an immigration petition are of less weight thanpreexisting, independent evidence that one would expect of a fencing coach who has sustainednational or international acclaim at the very top of his field. The nonexistence of requiredevidence creates a presumption of ineligibility. 8 C.P.R. § 103.2(b)(2)(i). The classification soughtrequires "extensive documentation" of sustained national or international acclaim. See section203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.P.R. § 204.5(h)(3). Thecommentary for the proposed regulations implementing the statute provide that the "intent ofCongress that a very high standard be set for aliens of extraordinary ability is reflected in thisregulation by requiring the petitioner to present more extensive documentation than that required"for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). D. Prior 0-1 Nonimmigrant Visa StatusThe petitioner submitted documentation indicating that he is the beneficiary of an approved 0-1nonimmigrant visa petition for an alien of extraordinary. This prior approval does not precludeUSCIS from denying an immigrant visa petition based on a different, if similarly phrased standard.Each case must be decided on a case-by-case basis upon review of the evidence of record. It mustbe noted that many I-140 immigrant petitions are denied after USCIS approves priornonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C.2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co.Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions aresimply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see alsoTexas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals donot preclude USCIS from denying an extension of the original visa based on a reassessment ofthe aliens qualifications).The AAO is not required to approve applications or petitions where eligibility has not beendemonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Commr 1988). It would be absurd to
  • 22. Page 17suggest that USCIS or any agency must treat acknowledged errors as binding precedent. SussexEngg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).Furthermore, the AAOs authority over the service centers is comparable to the relationshipbetween a court of appeals and a district court. Even if a service center director has approved anonimmigrant petition on behalf of the alien, the AAO would not be bound to follow thecontradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855,2000 WL 282785, *1, *3 (E.D. La.), ajfd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51(2001). III. CONCLUSIONThe documentation submitted in support of a claim of extraordinary ability must clearly demonstratethat the alien has achieved sustained national or international acclaim and is one of the smallpercentage who has risen to the very top of the field of endeavor.Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories,in accordance with the Kazarian opinion, the next step would be a final merits determination thatconsiders all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a"level of expertise indicating that the individual is one of that small percentage who have risen to thevery top of the[ir] field of endeavor" and (2) "that the alien has sustained national or internationalacclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R.§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that theevidence is not indicative of a level of expertise consistent with the small percentage at the very top ofthe field or sustained national or international acclaim, the AAO need not explain that conclusion in afinal merits determination. 5 Rather, the proper conclusion is that the petitioner has failed to satisfy theantecedent regulatory requirement of three categories of evidence. !d. at 1122.The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and thepetition may not be approved.The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appealwill be dismissed. In any future proceeding, the AAO maintainsORDER: The appeal is dismissed. the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter.~The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir.2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the officethat made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R.§ 103.1(1)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, nowusers, is the sole authority with the jurisdiction to decide visa petitions).
  • 23. Examining the Roles of the Adjudicators in the Initial or RemandedProceeding vs That of the Administrative Appellate Body on Review By Joseph P. Whalen (January 30, 2012)A recent case suggested an opportunity to discuss an issue of interest, so, here it goes.Edy Darcelin v. Atty Gen USA, Filed 01/30/12, No. 10-3674 (3rd Cir. Non-precedent) at:http://www.ca3.uscourts.gov/opinarch/103674np.pdf states: “An IJ’s discretion to enlarge the scope of proceedings on remand from the BIA is well-established. If, as here, the BIA does not limit a remand to a specific purpose, the BIA’s remand “is effective for the stated purpose and for consideration of any and all matters which the [IJ] deems appropriate in the exercise of his [or her] administrative discretion . . . .” Johnson v. Ashcroft, 286 F.3d 696, 701 (3d Cir. 2002) (quoting Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978)). The IJ properly exercised his discretion in limiting the scope of the remands to consideration of Darcelin’s eligibility for CAT protection. In this context, Darcelin’s due process rights were not violated.”The principal Third Circuit case cited Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002)dissects and discusses the BIA Precedent Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA1978). The selected passages from Johnson (excerpts shown further below) would likelybe of use to USCIS’ AAO in crafting a few of the points to be made in its upcomingRulemaking. AAO very frequently states that the new decision must be returned forreview on certification, sometimes regardless of outcome and other times only if adverse.Still others after further investigation, inquiry, or specific actions are followed.AAO is much more direct on the issue of retaining jurisdiction but does not frequentlyneed to confine the actions to be taken on remand. In essence, when AAO remands thenthe adjudicator below can start from scratch as AAO will perform full de novo review ifthe case comes back to it whether on appeal or certification (regardless if as ordered byAAO in the written remand order or in the Director’s discretion). On occasion, in specificcontexts or specific cases, AAO is very explicit on what must be done on remand.Specificity is often expressed when an N-600 denial is overturned and a Certificate ofCitizenship must be issued. Other explicit commands have included the issuance of anRFE in order to address something that was overlooked or when the wrong regulationswere used in the adjudication below. That “remand for RFE under correct regulations”situation happened in numerous Special Immigrant religious Worker I-360 petitions whenadjudicators were citing old outdated regulations after they missed a major regulatory Page 1 of 3
  • 24. change. Lastly, one particular situation which is a favorite of mine is when the Directorwants to deny an N-600 for a citizenship claim based on clear and convincing evidence insupport of a finding of statutory ineligibility BUT the citizenship claimant has presenteda copy of a U.S. Passport. In such cases, AAO may command that the Directorcommunicate with the Passport Agency to see if they can and will revoke the erroneouspassport. Such communication being the proper course of action as stated in theAdjudicator’s Field Manual in the first place.Getting back to the pertinence of Johnson, the court stated a few pearls of wisdom: “¶1 Jimmy Johnson petitions for review of a Board of Immigration Appeals ("BIA" or "Board") order reversing a grant of asylum and withholding of deportation based on changed country conditions. ¶2 The BIA held that the Immigration Judge did not have jurisdiction over these claims at the time he considered Johnsons application for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT")1 because the case had been reopened and remanded for the "sole purpose" of considering the CAT claim. The question before us is whether on remand the Immigration Judges jurisdiction was limited to the CAT issue. For the reasons below, we conclude that, in deciding that it was limited, the Board departed without reasonable explanation from its own policy that it established in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978). Accordingly, the Petition for Review will be granted and we will vacate the Boards order and remand for further proceedings consistent with this opinion.” ***** “¶12 In its opinion, the Board began by citing the general rule that "a remand, unless the Board qualifies or limits it for a specific purpose, is effective for the stated purpose and for consideration of any and all matters which the Immigration Judge deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations." Citing Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978) (Boards emphasis). It then pointed out that the standards to reopen for relief under CAT are more easily satisfied than those to reopen for other purposes.” ***** “¶17 We begin our analysis with a discussion of the Boards opinion in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978), in which the Board established the standard for the scope of remand orders in immigration proceedings. While few cases or Board decisions elaborate on Patels standard, and its language is often quoted without elaboration,5 it is widely acknowledged to govern this situation. This is not disputed here: the parties and the Board simply offer competing interpretations of the standard the case sets forth.” “¶18 .... ..... Patel set forth the relevant test as follows: Page 2 of 3
  • 25. ¶19 [W]hen the Board remands a case to an immigration judge for further proceedings, it divests itself of jurisdiction of that case unless jurisdiction is expressly retained. Further, when this is done, unless the Board qualifies or limits the remand for a specific purpose, the remand is effective for the stated purpose and for consideration of any and all matters which the Service officer deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations. ¶20 Id. at 601.” ***** “¶23 Patel itself does not elaborate on the concept of "express retention" of jurisdiction. After setting forth the test, it simply states that the remand order at issue was "not limited or qualified," bypassing analysis of "express retention." And, there is no caselaw discussing how we should interpret this language in this context. We thus turn for guidance to the common definition of "express" as "explicit," in contrast to implicit or inferred. Blacks Law Dictionary, for instance, defines "express" as "[c]lear; definite; explicit; plain.... Made known distinctly and explicitly, and not left to inference." BLACKS LAW DICTIONARY 580 (6th ed. 1990). Other dictionaries give substantially similar definitions. See, e.g., WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 803 (1993) (defining "express" as "directly and distinctly stated or expressed rather than implied or left to inference ... definite, clear, explicit, unmistakable"). ¶24 The most obvious way for a tribunal to "expressly retain jurisdiction" is by stating that it is doing precisely that. In In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 367 (3d Cir.2001), we characterized the district court as having "expressly retained exclusive jurisdiction" over certain settlement proceedings where its order simply stated that it "retain[ed] exclusive jurisdiction as to all matters relating to [settlement] administration." In re Prudential Ins. Co. of Am. Sales Practice Litig., 962 F.Supp. 450, 566 ¶ 10 (D.N.J.1997). And in other situations where the adjective "express" is used, we have viewed it as requiring an actual, stated reference or mention. In Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 141 (3d Cir.2001), for instance, we found no "express determination" that there was no just reason for delay where the district courts order did not use the phrase "no just cause for delay" or any similar statement.”While I generally like to point out that the BIA and AAO are qualitatively different innature, i.e. contexts, and belong to different adjudicatory systems, certain routineprocedural points apply to both. BIA reviews decisions reached in adversarialproceedings involving face-to face opponents in hearings. AAO performs faceless, paper-based reviews of mostly paper-based initial decisions in an inquisitorial system. Thatsaid, there is no need to re-invest the wheel in order to craft an AAO Reform Rule thathas been in the works off and on since 1995. Page 3 of 3
  • 26. AAO Was Struggling To Correctly Apply Kazarian All The Way Through Time of Amicus Brief Request By Joseph P. Whalen (June 15, 2012)In reviewing the posted AAO non-precedential dismissal of an appeal of the denialof an extraordinary ability visa petition dated July 11, 2011 1, it is becoming clearerto me that AAO was really struggling to deal with the fallout from the NinthCircuit Court of Appeals’ second decision in Kazarian v. USCIS, 596 F.3d 1115(9th Cir. 2010) (March 4, 2010) 2. The first Kazarian decision of September 4,2009 3, which was later withdrawn and replaced with one that adopted much of thedissent’s reasoning might have lulled them into a false sense of security for awhile. There was however another court case that could have helped AAO applythe reasoning from Kazarian available as of February 22, 2011. Rijal v. UnitedStates Citizenship & Immigration Servs., 772 F.Supp. 2d 1339 (W.D. Wash. 2011)applied the reasoning from Kazarian and was itself later adopted by the NinthCircuit without changing one word. We now have two U.S. Circuit Court ofAppeals Precedents and the single administrative Precedent, Matter of Price, 20 I.& N. Dec. 953 (Acting Assoc. Comm’r 1994)4 that should probably bedistinguished and clarified or modified by a new AAO Precedent on topic.Nick Price’s eligibility for this visa classification was so “over-the-top” that it wastoo easy to approve and in my opinion made for a poor choice as a Precedent. Veryfew other petitions could ever possibly be that easy to decide. I equate Matter ofPrice’s worth as a Precedent as having the same value as Congress’ single exampleof a major award being the Nobel Prize.A sole example that is too unique and scarce is of little value. The petitioningprocess for this visa application is progressive. There is a first step requiring one tomeet an initial threshold or as described in Kazarian and Rijal, the petition andaccompanying evidence must answer an antecedent procedural question. Theinitial evidentiary showing or prima facie case in the process of applying for thisvisa classification may be met in one of three ways.1 See: http://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2011/Jul112011_01B2203.pdf2 See: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf3 See: http://www.ca9.uscourts.gov/datastore/opinions/2009/09/04/07-56774.pdf4 See: http://www.justice.gov/eoir/vll/intdec/vol20/3241.pdf Page 1 of 4
  • 27. The petition may be accompanied by evidence of: 1) Receipt of a one-time major internationally recognized award such as Congress’ example, i.e., the Nobel Prize, see 8 CFR § 204.5(h)(3); or 2) At least three of the ten listed possibilities at 8 CFR § 204.5(h)(3)(i)-(x); or 3) “Comparable evidence” but only if none of the above apply to the beneficiary’s occupation and/or extraordinary ability.The first way to meet the initial threshold is by submitting “evidence of a one-timeachievement (that is, a major, international recognized award).” 8 C.F.R. §204.5(h)(3). The single example discussed by Congress was the Nobel Prize. Thisvisa is not really restricted only to Nobel Prize Winners. This one example fromCongress is an oversimplification.A very significant one-time achievement is not truly defined and is likely to changeover time. The Oscar is another example frequently thrown about. Officiallyknown as the Academy Awards, “Oscars” were first handed out on May 16, 1929,to 15 recipients. The variety and number of categories change and usually growover time. Few people have probably ever thought about those changes over time,or the “How” or “Why” of such changes. The Academy Award® for SpecialEffects was added in 1939, and was first won by Fred Sersen and E. H. Hansen of20th Century-Fox for “The Rains Came.” I would never have known if I didn’tneed to look it up to bolster my Amicus Brief 5to AAO on this topic.In 1963, the Special Effects award was split into two: Sound Effects and SpecialVisual Effects, in recognition of the fact that the best sound effects and best visualeffects did not necessarily come from the same film. The genre of special effects asan example has grown from the stop-motion of King Kong (1933) which was notrecognized as the innovation that is was, to the superb make-up of the Planet of theApes (1968) to Star Wars (1977) and beyond.Achievements in any given area or field of endeavor, and how we as a society viewand value such achievements changes in unpredictable ways so, the evidence isfluid. By “fluid” I mean that the evidence categories are dynamic and subject tosubstantial change over time. If the evidence of great achievement were static andunchanging then it could be more easily spelled out and codified in a list. The bestone can hope to list are broad categories which may themselves change over timeand are subject to reinterpretations.5 Amicus Brief on Final Merits Determination (Brief 5) (1KB PDF) or,http://www.uscis.gov/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF Page 2 of 4
  • 28. The next step in adjudicating the extraordinary ability visa classification petitionmay only proceed if the the first step has been successfully achieved. In otherwords, there is no need to attempt to answer questions that don’t require an answer.AAO has made some mistakes in proceeding with its full de novo reviews of theentire record of proceeding beyond the point at which it should stop. Oncedetermining that the evidence fails to meet the initial required showing, why havethey insisted on continuing to say anything after that point?AAO’s early post-Kazarian decisions seem to have missed that point. There isabsolutely no need to move on to a qualitative analysis and evaluation or “finalmerits determination” if the “antecedent procedural question” has not beensatisfactorily answered or in other words the case fails on the preliminaryquantitative aspect with insufficient evidence. To proceed to the more in-depthevaluation in the second step of the Kazarian analysis of evidence that does notmeet the initial threshold is a waste of resources. In addition, it lays the agencyopen to unnecessary criticism by a reviewing court. There is an inherent danger incontinuing to say something that does not need to be said in the first place. USCISin general is too engrained in tearing down the evidence offered.For example, the twenty (20) page non-precedent of July 11, 2011, noted above,contains some unnecessary analysis and negative criticism. On page seventeen(17), after painstakingly parsing and dissecting the evidence in order to decide thatthe evidence offered did not meet the initial threshold, there was no need tocontinue. AAO did not stop where it should have stopped. Instead they proceededto go through the motions of performing an irrelevant qualitative analysis andevaluation. They stated that they “must” conduct a final merits determinations andthat they “must” look at the totality of the evidence. I say they were wrong in thatassertion. In order to consider the “totality of the evidence” as part of a “finalmerits determination” the case must be developed to the point that such aqualitative analysis is actually required. Here is an excerpt that shows themisunderstanding [underlining added for emphasis]. “C. Final Merits Determination In accordance with the Kazarian opinion, the AAO must 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 Page 3 of 4
  • 29. 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)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The petitioner established that he met the plain language of the regulation for one of the criteria, in which at least three are required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in the documentation submitted by the petitioner have already been addressed in the preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). In evaluating the final merits determination, the AAO must look at the totality of the evidence to conclude the petitioners eligibility pursuant to section 203 (b)(1)(A) of the Act. ....”I agree that if a case is worthy of the effort, that the approach outlined above issound. However, if the case has not progressed to the point of requiring any in-depth analysis there is no value in shredding the evidence any further than italready has been. I read one line in the quote above as an unfinished dig : “manyof the deficiencies in the documentation submitted by the petitioner have alreadybeen addressed in the preceding discussion” but we are going to point out evenmore deficiencies. I have to ask: “Why bother?”As noted in Rijal by District Judge Jones, “Although USCIS erred in some of its conclusions as to Mr. Rijal’s showing on the threshold evidentiary criteria, it is apparent that it made those errors with an eye toward the ultimate merits determination. In each instance, USCIS sought evidence that demonstrated sustained acclaim. There is no threshold requirement that the evidence demonstrate that acclaim, but ultimately, USCIS must determine whether the evidence demonstrates “sustained national or international acclaim.” 8 U.S.C. § 204.5(h)(3); see also Kazarian, 596 F.3d at 1121 (noting that evidence submitted to meet threshold criteria must support a “final merits determination” that the “petitioner is at the very top of his or her field of endeavor”). USCIS concluded that Mr. Rijal’s evidence demonstrated distinction, but not sustained acclaim sufficient to demonstrate “extraordinary ability.” Its May 2009 decision makes clear that this conclusion is not the result of its erroneous determination about Mr. Rijal’s threshold evidentiary showings, but rather a holistic determination about whether Mr. Rijal’s evidence, taken as a whole, sufficed:....” Rijal, 772 F. Supp. 2d. 1339, 1347-1348.If AAO can reign itself in in those cases where it determines that the initialthreshold has not been met then perhaps under an APA review cases would beremanded for a proper analysis when reviewing court finds that the bar washeightened. That should block a reviewing court from making a finding that AAOacted in a manner that was arbitrary and capricious. Such an approach should forcea court to remand the case for full analysis instead. That’s my two-cents, for now. Page 4 of 4

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