Musings On The Equivalent Persuasive Value Of Comparable Evidence
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Musings On The Equivalent Persuasive
Value Of Comparable Evidence
By Joseph P. Whalen (Thursday, July 30, 2015)
“On appeal, the petitioner asserts, in part, that he has established
his eligibility for the petition based on comparable evidence
under the regulation at 8 C.F.R. § 204.5(h)(4). On November 25,
2014, we issued a request for evidence (RFE), in which we
concluded that the evidence shows that the petitioner seeks to
work in the field of pipe organ building and requested that he
submit additional evidence that might further develop his
reliance on comparable evidence. Specifically, we requested:
Comparable evidence that is either equivalent to any one
or more of the ten types of evidence listed under 8 C.F.R.
§ 204.5(h)(3)(i)-(x), or that is of equivalent persuasive
value, that establishes the petitioner meets the
antecedent procedural requirements for the petition; …”
JUN182015_01B2203.pdf, at p. 2.
Wow! That phrase jumped out at me---“equivalent persuasive value”.
Another thing that jumped out at me was that AAO has now backed away
from its previous stance on comparable evidence. They previously demanded
that none of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) applied. In this case
decision, AAO is asking for an explanation as to why any one or more of the
ten types of evidence in the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not apply.
Wow! That is a big change from prior practice. No matter which way it has to
be, it seems to be a lot harder than it seems at first blush. It’s one thing to
say it and another to do it. While I fully understand and acknowledge that
AAO does not announce any policy changes in its non-precedential decisions,
we can gain insights into the practical applications that are in fact happening
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in this field. The difference between precedent and non-precedent decisions
is explained in the November 18, 2013, Policy Memorandum entitled:
Precedent and Non-Precedent Decisions of the Administrative Appeals Office
Here is how AAO phrased stated this issue.
“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. 8 C.F.R. § 204.5(h)(4).
The director concluded that the petitioner had not submitted
evidence of the display of his work at artistic exhibitions or
showcases pursuant to 8 C.F.R. § 204.5(h)(3)(vii). On appeal, the
petitioner asserts that the evidence he submitted in support of
that criterion constitutes comparable evidence under the
regulation at 8 C.F.R. § 204.5(h)(4). Given the unique nature of
the petitioner's occupation, we accept that the petitioner may
rely on evidence that is comparable to the standards set forth at
8 C.F.R § 204.5(h)(3). The next question, however, is whether the
evidence on which the petitioner relies is, in fact, comparable.
Accordingly, we issued an RFE in which we requested specific
evidence and information that might develop the petitioner's
reliance on comparable evidence. The petitioner did not
respond.” Id. at p. 6.
I would love to see AAO’s RFE in order to get a better grasp of
the types of evidence that may have been loosely suggested.
From what little is available in this non-precedent, I can
deduce a “comparable evidence framework”. I offer the following
list of steps as my best guess on how to proceed in the future. This
is only my take on how to generalize from the specific in order
to devise an adjudicative framework for practical application.
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The successful framework will be one that can be reused with
only slight variations based on an individual criterion from the
list of ten found at 8 C.F.R. § 204.5(h)(3)(i)-(x).2
1) The first step is to isolate and describe the unique nature of the
2) The next step is to effectively select a criterion from the list of
ten that has a quality about it that could apply with some slight
3) Then break it down and pull it apart in order fully understand
the components of the selected criterion.
4) Next is the step where the petitioner must carefully select the
proposed comparable evidence.
5) Finally, the petitioner must satisfactorily explain how the
proffered evidence is qualitatively comparable and sufficient to
demonstrate the essential components of the selected criterion.
I can only hope that this simple series of steps is of some use to
someone. If it helps just one person then it will have been time
well spent writing it.
Dated this 30th day of July, 2015
/s/ Joseph P. Whalen
That’s my two-cents, for now!
This essay uses the E1-1 (EB-1A) immigrant visa for Aliens of Extraordinary Ability as a working model to devise an
adjudicative framework for practical application but it can apply to other categories that contain a “comparable
evidence” option such as the O-1 nonimmigrant visa for Individuals with Extraordinary Ability or Achievement.
Digitally signed by Joseph P. Whalen
DN: cn=Joseph P. Whalen, o, ou, firstname.lastname@example.org, c=US
Date: 2015.07.30 00:19:51 -04'00'