Vagueness rules the day in this AAO sustained eb-1 appeal

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In stark contrast to the most recent article I posted about "specificity"!

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Vagueness rules the day in this AAO sustained eb-1 appeal

  1. 1. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 1 Vagueness Rules the Day in this AAO Sustained Appeal by Joseph P. Whalen (July 5, 2014) I was aghast when I encountered the below linked AAO Sustained Appeal Decision just moments after posting an article about the AAO push for “specificity” in initial decisions. At first blush, it would appear that AAO did not include itself in that push except when shredding evidence in order to fully support the denial of a benefit. After giving myself as little time to “cool off” and in the desire to give, and in this article I am giving, the “benefit of the doubt” to AAO on this issue, I am left with three possible (perhaps even “plausible”) explanations for this disparate treatment. First, AAO may be contemplating an editorial revision for submission to the BIA as a new precedent decision; (I hope) we all know that this category (EB-1 extraordinary ability) could most certainly use a new one. Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm’r 1994), is not a very good precedent because the case was too darn easy to approve. Its usefulness is on par with Congress’ single example of the Nobel Prize. As I have said before, a single example that is so incredibly unique is of virtually no value. With my background as, and education to become, an archaeologist, my thought processes are more attuned to the mechanics of “generalizing from the specific” because it was a required skill in that occupation. Experienced and contemplative jurists are able to perform that task as well when they formulate a “test” of one sort or another. All I can do is hope for the best. One helpful item contained in Price is a quote from the supplementary information published in a Federal Register Notice when the regulatory rule governing this adjudication was being promulgated. Page 955 of the decision in Matter of Price gives us the following notable quote. “Performance at that [major league] level may frequently help to establish that the athlete meets several of the listed criteria. However, section 203(b)(1)(A)(i) of the Act, as amended by section 121(a) of Public Law 101- 649, states that the alien's extraordinary ability must be "demonstrated by sustained national or international acclaim." Not all athletes, particularly those new to major league competition, would be able to meet this standard. A blanket rule for all major league athletes would contravene Congress' intent to reserve this category to "that small percentage of individuals who have risen to the very top of their field of endeavor." 56 Fed. Reg. 60,897, 60,899 (1991)”
  2. 2. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 2 The part I find most helpful is: “A blanket rule for all major league athletes would contravene Congress' intent to reserve this category to "that small percentage…””. I could not agree more with that sentiment. I included the same sentiment in my Amicus Brief to AAO on the proper application of the “Final Merits Determination” (I call it a qualitative analysis and evaluation of the evidence) or what is increasingly being known as the second part of the Kazarian analysis. In a discussion on improving the guidance to applicants and/or petitioners regarding “comparable evidence” but drawn from NYSDOT1 , I stated, in pertinent part: “….. It is the position of USCIS to grant national interest waivers on a case by case basis as demonstrated by the evidence in the individual record, rather than to establish blanket waivers for entire fields of specialization. The same rationale shall be applied to the determination of eligibility for visa classification as an alien of extraordinary ability.” At p. 6 of Amicus Brief. 2 It seems clear to me that certain categories of immigration benefits are simply not suited to blanket or “programmatic” treatment. That is not to say that there aren’t any benefits under the immigration laws that are suitably treated in a blanket or programmatic manner. There most certainly are such benefits3 but this just doesn’t happen to be one of them. A second potential “benefit of the doubt” type of explanation for the disparate treatment between sustained and dismissed appeals might be privacy concerns. If too much information, even with redaction, might still leave enough clues for the apparently well know beneficiary or self- petitioner to be identified then I can see holding back but not this much. Without the individual’s consent, a non-precedential AAO decision rightfully remains a very private matter. In order to release more details (even while still withholding the person’s name—as in Matter of XXX etc…) the decision would most likely need to be heavily revised and properly edited and reviewed multiple times by multiple sets of eyes before publishing it as a new official Precedent Decision. A third potential “benefit of the doubt” type of explanation for the disparate treatment between sustained and dismissed appeals might be fraud prevention. AAO, indeed USCIS as a whole, would not want to 1 Matter of New York Department of Transportation, 22 I&N Dec. 215 (AAO 1998) 2 SEE: http://www.slideshare.net/BigJoe5/amicus-brief-to-uscis-on-kazarian-final-merits-determination-aug-20- 2011-jpw-redacted Posted as by Anonymous Author on uscis.gov. 3 SEE: http://www.slideshare.net/BigJoe5/ina-programmatic-approaches-v-individualized-case-by-case-analysis-8- 2811-jpw
  3. 3. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 3 inadvertently or prematurely4 provide ready-made blurbs to be stolen from the written decision that would make it easier for some unscrupulous person to copy and re-use what would be viewed as “successful” language, situations, or scenarios to be emulated at any and all costs. Nearly any benefit request can be bolstered with fake evidence (that is NO “trade- secret”). The plagiarism of select passages from a well written and highly detailed analysis that actually supported approval would be a hot commodity. However, in actuality it would be a big waste of time to do it. This is so because even before it is tried, the adjudicators would be looking for it. Only the stupidest and MOST desperate of individuals would even try it and they would get caught right away and potentially prosecuted for fraud as an example to others and at the very least would then become inadmissible and highly unlikely to be granted any waiver. That said, there are plenty of stupid and desperate individuals who would try it anyway. A final alternative could be something that I don’t want to believe. Specifically, that AAO is simply choosing to not be helpful. I don’t believe that that is the case but felt that I had to “throw it out there” just because it is within the realm of possibility. I say only a “possibility” because of the great strides I am seeing and cannot comprehend why progress would be halted or why it would be withdrawn at this stage without a darn good reason. I am hoping that some combination of scenarios one, two, and three, is at the heart of the matter. What follows is the bulk of the AAO sustained appeal referenced herein. I have maintained the original pagination for the most part (I dropped the cover page) and inserted lines to mark the start and end of each page as in the posted decision5 with a few comments inserted between them. I have also added highlighting of specific passages. NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. 4 By prematurely releasing such information, I mean that the agency needs to train the staff involved in these cases by preparing training materials concurrently with the precedent revision and then immediately distributing the published decision to those adjudicators with deliberate haste and direct orders to read it and discuss it. 5 I did fix a couple of “orphaned” passages just to “clean it up” for this article and I find it undesirable and a nuisance to interrupt a train of thought needlessly.
  4. 4. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 4 Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and present "extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained national or international acclaim through evidence of a one-time achievement of a major, internationally recognized award. Absent the receipt of such an award, the regulation 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 regulatory categories of evidence to establish the basic eligibility requirements. On appeal, the petitioner submits a brief. For the reasons discussed below, upon review of the entire record, the petitioner has established eligibility for the exclusive classification sought. I. LAW Section 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-- (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 alien's entry into the United States will substantially benefit prospectively the United States. So far, I have NO CLUE as to whether this person’s “extraordinary ability” is in the sciences, arts, education, business, or athletics. I dare say, neither does anyone else. Let’s look for any available context clues for a hint. NON-PRECEDENT DECISION Page 3 U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service (INS) have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10151 Cong., 2d Sess. 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 of endeavor. Id.; 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 alien's sustained acclaimand the recognition of his achievements in the field. Such acclaim must be established either 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 evidence listed 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 a petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given evidentiary criterion.[FN1] With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted to meet those two criteria, those concerns should have been raised in a subsequent "final merits determination." Id. at 1121-22.
  5. 5. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 5 The court stated that the AAO's evaluation rested on an improper understanding of the regulations. Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). Thus, Kazarian sets forth a two-part approach where the evidence is first counted. If the petitioner satisfies at least three criteria, then USCIS will consider the evidence in the context of a final merits determination. II. ANALYSIS A. Evidentiary Criteria The petitioner seeks classification as an "alien of extraordinary ability." The director concluded that the petitioner meets the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(vii). Upon review of the entire record, we finds [sic] that the petitioner's submitted evidence also meets an additional two of the regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3)(iii) and and [sic] (viii). Accordingly, the petitioner has established the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). ______________________ [FN1] Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). There seems to be a little bit of “revisionist history and selective amnesia” in AAO’s now standard Kazarian blurb where they state: “…. "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." AAO conveniently does NOT include the fact that they found that Dr. Kazarian met NONE of the criteria when the Court found he had met two. Specifically, Senior Circuit Judge Dorothy W. Nelson wrote for the panel: “The AAO found that Kazarian did not meet any of the regulatory criteria. Only four of the ten are at issue in this appeal. We find that the AAO erred in its consideration of two of these issues.” Moving right along, the use of “If…, then…” statements, is more useful than reusing the passage from the actual Kazarian decision that had been used previously. Judge Nelson left out the word “then” in writing what simply must be read as an “if…then…” statement in order to make sense. Judge Nelson actually wrote: “If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i).” At 1120 It seems clear to me that it is more naturally read as: “If a petitioner has submitted the requisite evidence, [then] USCIS determines whether the evidence demonstrates…”
  6. 6. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 6 As for the instant case under discussion, the petitioner was found to meet three criteria, specifically they are: (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; * * * * * (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; The current case under discussion does not even specifically list the cited criteria let alone discuss what was submitted to meet them. At this point, I still have no clue even in what area this “extraordinary ability” resides. NON-PRECEDENT DECISION Page 4 B. Final Merits Determination We will next conduct a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. In the present matter, consistent with Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm'r 1994), the petitioner has submitted extensive documentation of his achievements and has demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is sufficient to demonstrate the petitioner's sustained acclaim and that his achievements have been recognized in the field of expertise. The petitioner has worked in his field for approximately forty years and has designed and managed projects all over the world, including [REDACTED] in France, [REDACTED] in Italy, [REDACTED] in Germany, [REDACTED] in Brazil and the [REDACTED] in Turkey. The petitioner submitted letters from employers which demonstrated the leading and critical role he performed for them. In addition, the petitioner submitted evidence of the display of his work at exhibitions. He also submitted copies of articles froma variety of sources in a number of countries. While not all of the articles are about the petitioner or comply with the regulatory requirement that the petitioner include the publication, date and author, there is sufficient evidence that meets the requirements of 8 C.F.R. § 204.5(h)(3) (iii). The remaining articles, including those he has been invited to write for an international trade journal discussing his projects, are relevant to the significance of the projects on which he has worked and his role for those projects. He currently owns his own business in Florida and is designing and managing projects in both the United States and abroad, including [REDACTED], in Rome. Thus, in light of the above and other evidence of record consistent with eligibility, the petitioner's achievements are co mmensurate with sustained national or international acclaimat the very top of his field. III. CONCLUSION While not all of the petitioner's evidence carries the weight imputed to it by the petitioner, the evidence of record [is] [sic] sufficient to establish that he has demonstrated his eligibility for the classification sought. Specifically, upon careful review of the record, it is concluded that the petitioner has demonstrated by a preponderance of the evidence that he is within the small percentage of individuals who have risen to the very top of his field. The evidence I feel the need to ask “What evidence?”
  7. 7. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 7 NON-PRECEDENT DECISION Page 5 submitted establishes that the petitioner has sustained national or international acclaim, his achievements have been recognized in his field, he seeks to continue working in the same field and his entry will substantially benefit prospectively the United States. The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has sustained that burden. ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is approved. After having gotten through the whole thing, I only know that the self-petitioner:  has “designed and managed projects all over the world”, and  that “he” had a “leading and critical role” for past employers, and  that there was “evidence of the display of his work at exhibitions”. I do not know:  what kinds of projects or what works were;  displayed at exhibitions;  the nature of his role for past employers,  which of the five contexts from the statute apply to his occupation, nor what the occupation, in fact, is. AAO has presented vague conclusory assertions without citing to any specific piece of evidence. There was, once again, no particularized analysis made, or citation to the evidence presented. The AAO Sustained Appeal is found at: JUN182014_01B2203.pdf ***OR*** http://www.uscis.gov/sites/default/files/err/B2%20%20Aliens%20with%20 Extraordinary%20Ability/Decisions_Issued_in_2014/JUN182014_01B2203 .pdf That’s my two-cents, for now!
  8. 8. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 8 About the Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 or (716) 768-6506 E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 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, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.

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