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EB-1 Extraordinary Ability as a Baker and Food Technologist under 8 CFR 204.5(h)


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EB-1 Extraordinary Ability as a Baker and Food Technologist? No? Well, nobody as USCIS (including AAO) bought it. Also, she submitted falsified evidence and now has the albatross of "fraud" hanging around her neck for life.

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EB-1 Extraordinary Ability as a Baker and Food Technologist under 8 CFR 204.5(h)

  1. 1. EB-1 Extraordinary Ability As A “Baker And Food Technologist” Under 8 CFR § 204.5(h)(3)? By Joseph P. Whalen (October 3, 2014) I. INTRODUCTION: The first thing that jumps to my mind is a question. Would this “occupation” be considered among the “arts” as in the “culinary arts” or under the heading of a “science” such as “nutrition” or “food science” or “food technology”? As noted in the title, this case involved a request to be classified under 8 CFR § 204.5(h) which is shown below for the convenience of the reader. Sub-paragraph (3) relates to the evidence. Since the petition was filed in 2005, I checked and this is as it read at that time. Ultimately, does my initial question even matter? (h) Aliens with extraordinary ability-- (1) An alien, or any person on behalf of the alien, may file an I-140 visa petition for classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. (2) Definition. As used in this section: Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. (3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following: (i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's 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;
  2. 2. Contact: (716) 604-4233 OR (716) 768-6506 Page 2 (iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought; (v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; (vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. (4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. (5) No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue h is or her work in the United States. My initial question sprang forth from a nagging feeling that “arts” have a slightly different evidentiary threshold somewhere in the regulations. I did some checking and put that thought to rest. The “arts” do have a slight advantage in the nonimmigrant version “O-1” visa category. In the nonimmigrant version, “arts” are segregated and further differentiated when it specifically involves the “motion picture or television industry” under 8 CFR 214.2(o)(3)(iv) and (v). However, the EB-1 “baker or food technologist” could be considered as either in the arts or sciences and it really makes little difference as they use the same list. On that list there are two criteria devoted solely to “arts” for “artistic exhibitions or showcases” or “commercial success in the performing arts”. For a non-celebrity chef, there is not much possibility of an advantage to bother discussing it further.
  3. 3. Contact: (716) 604-4233 OR (716) 768-6506 Page 3 II. THE UNSUPPORTED CLAIM OF EXTRAORDINARY ABILITY & FINDING OF FRAUD & MISREPRESENTATION: Our next contestant hails from Poland and likes to bake. Unfortunately, she also likes to create fraudulent documents and claim the work of others as her own. Lastly, as a hobby, she enjoys making unsupported and somewhat refuted, claims of ineffective assistance of counsel. LINKS & NOTES NOTES/EXCERPTS May042007_01B2203.pdf VSC Denied the I-140 on September 26, 2005, but that decision is unavailable to the public. Because the petitioner failed to provide independent and objective evidence to overcome, fully and persuasively, AAO’s finding that she submitted a falsified document in support of the petition, they affirmed their finding of fraud. That finding of fraud shall be considered in any future proceeding where admissibility is an issue. The appeal was dismissed with a finding of fraud and material misrepresentation. Prior to issuing this dismissal, AAO sent a Notice of Derogatory Information dated March 7, 2007, after determining that an article had been altered by substituting the name of this “self-petitioner” for the actual subject of the article. Section 2 12(a)(6)(C) of the Act provides: Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible. Under Board of Immigration Appeal (BIA) precedent, a material misrepresentation is one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded." Matter of S- and B-C-, 9 I&N Dec. 436,447 (BIA 1961). To make matter worse, she tried to blame the fraud on her attorney and/or employees thereof. However, the “Retainer Agreement” indicated that all documentary evidence was to be supplied by the “self-petitioner”. There is no evidence or even suggestion that it wasn’t. Also, as to the ineffective assistance of counsel claim, the self-petitioner did not comply with the requirements set forth in Lozada.
  4. 4. Contact: (716) 604-4233 OR (716) 768-6506 Page 4 Dec052012_01B2203.pdf Page 3 is missing from the copy linked above. However, the below linked copy does contain page 3. Dec052012_02B2203.pdf The MTR was filed to protest the finding of fraud only. The initial Appeal Dismissal also considered the case on the merits and found the evidence lacking. Since the merits determination was not challenged, it is viewed as conceded. Lastly, the evidence did not sufficiently establish that the petitioner was actually represented by the attorney she claims committed fraud without her knowledge. This untimely Motion to Reopen was dismissed with the previous formal findingof fraud and material misrepresentation remaining intact. “DISCUSSION: The Director. Vermont Service Center, denied the employment-based immigrant visa petition on September 26, 2005. On appeal, the Administrative Appeals Office (AAO) issued a notice advising the petitioner of derogatory information on March 7. 2007, providing the petitioner fifteen days to respond to the derogatory evidence that the AAO intended to use to make a finding of misrepresentation. On May 4, 2007, the AAO affirmed the director's adverse decision on the petition and issued a formal finding of misrepresentation. The petitioner's current counsel moves to reopen proceedings. In the brief supporting the motion to reopen, counsel asserts that independent and objective evidence is now available that shows the AAO’s previous finding of fraud was erroneous. The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied.” SEP052014_01B2203.pdf “..neither Jed David Philwin nor anyone associated with him signed the petitioner's Form I-140 petition or the Form I-290B filed on February 7, 2006. Accordingly, the petitioner may not rely on an ineffective assistance of counsel claim that is based This untimely Motion to Reconsider was also dismissed “DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition on September 26, 2005. On November 16, 2005, the petitioner filed an appeal. On January 10, 2006, the director rejected the appeal as untimely, accepted the filing as a motion to reopen and reconsider, and affirmed his previous denial of the petition. The petitioner appealed that decision on February 7, 2006. On March 7, 2007, the Administrative Appeals Office (AAO) issued a notice advising the petitioner of derogatory information and our intent to make a finding of misrepresentation. On May 4, 2007, we affirmed the director's adverse decision on the
  5. 5. Contact: (716) 604-4233 OR (716) 768-6506 Page 5 upon the preparation and representation of her Form I-140 petition, which lists no preparer and she alone signed. …..” petition and issued a formal finding of misrepresentation, finding unconvincing the petitioner's assertion that she was unaware of the submission of false documents. Approximately four years later, in 2011, the petitioner filed her first motion to reopen and reconsider. On December 5, 2012, we dismissed the motion for multiple reasons, including that it was untimely. The petitioner now files a second motion to reopen and reconsider. Our previous decisions will be affirmed, and the petition will remain denied.” The self-petitioning not-so-extraordinary Polish baker attempted to put the blame on a disbarred attorney whom she claimed had made misrepresentations without her knowledge. However, she could not show that he ever actually represented her. She could only show that the attorney had represented her husband and then only as to the labor cert but not either I-140. The disbarred attorney’s case is linked below. Matter of Philwin - Courthouse News Service III. EPILOGUE: LESSONS LEARNED I am always asking myself (and anyone else who will listen): “What can be learned from this case?” Today the answer seems to be: Lots!  Always get a clear written agreement with all service providers.  Seek reputable representation (check the BIA’s list of disciplined practitioners and perhaps find your help from their list or through your local bar association or an industry group or regulators, as applicable).  Face the facts about eligibility vs. qualifications. Be realistic in your goals.  IF you need an employer to sponsor you THEN don’t waste your time on self-petitioning for something for which you are not qualified.  Never falsify your evidence as the consequences are too far too great.  IF this self-petitioner ever finds another route to an immigrant visa, THEN she will have to overcome the formal finding of fraud and material misrepresentation which is on record against her.
  6. 6. Contact: (716) 604-4233 OR (716) 768-6506 Page 6 ABOUT THE AUTHOR I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street No. 6 Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: web or DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring.**Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. 2012 NAICS DEFINITION: 611430 PROFESSIONAL AND MANAGEMENT DEVELOPMENT TRAINING This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, televis ion, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods. That’s My Two-Cents, For Now! ** See: 15 U.S.C. §80b–2. (a)(11) or go to: prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true