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Musings On The Equivalent Persuasive Value Of Comparable Evidence

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Musings On The Equivalent Persuasive Value Of Comparable Evidence--I offer a suggested framework for presenting and evaluating "comparable evidence".

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Musings On The Equivalent Persuasive Value Of Comparable Evidence

  1. 1. e-mail: joseph.whalen774@gmail.com Page 1 of 3 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 While I fully understand and acknowledge that AAO does not announce any policy changes in its non-precedential decisions, we can gain insights into the practical applications that are in fact happening
  2. 2. e-mail: joseph.whalen774@gmail.com Page 2 of 3 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 (AAO); PM-602-0086.1.1 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. 1 http://www.uscis.gov/sites/default/files/USCIS/Laws/AAO/PM-602-0086-1_AAO_Precedent_and_Non- Precedent_Decisions_Final_Memo.pdf
  3. 3. e-mail: joseph.whalen774@gmail.com Page 3 of 3 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 petitioner's occupation. 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 alteration(s). 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 X /s/ Joseph P. Whalen That’s my two-cents, for now! 2 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, email=joseph.whalen774@gmail.com, c=US Date: 2015.07.30 00:19:51 -04'00'

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