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Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 1 of 10
TO:
s,·etlana Visinscnia
46701 Bullfinch Square
Sterling, ...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 2 of 10
..
' .
• Receipt No.: SRCI214751254
Page 2 of 10
AtTACHMEN...
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. Receipt No.: SRCI214751254
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(iv) Evidence o...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 4 of 10' .
~
Receipt No.: SRCI214751254
Page 4 of 10
2. Copy ofOil...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 5 of 10.'
Receipt No.: SRCI214751254
Page 5 of 10
Junior II Ten Da...
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..
Receipt No.: SRC1214751254
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Furthem1ore. US...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 7 of 10~
Receipt No.: SRC I2I475 I254
Page 7 of 10
Natalia Oreshin...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 8 of 10
Receipt No.: SRC1214751254
Page 8 of 10
While it appears t...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 9 of 10
Receipt No.: SRC 1214751254
Page 9 of 10
Moreover. the ten...
Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 10 of 10...
.- ,
Receipt No.: SRCI214751254
Page 10 of 10
El•itlem...
Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 1 of 16Department of Homeland Security ~
U.S. Citizenship and Immi...
Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 2 of 16
Notice for Customers with Disabilities
USCIS is committed ...
Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 3 of 16
SVETLANA VIS INSCAI/
..tn70 I 8ULLFINCII SQUARE
STERLI NG....
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A205 348 882
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DISCUSSION: The Director, Texas Service...
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(iii) the alien's entry into the Unite...
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II. ANALYSIS
A. Proper Standard of Proo...
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B. Additional Claims of Error on Appeal...
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sole example of a major, internationall...
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that the award must be internationally...
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not sufficient to meet the one-time a...
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in the newspaper. Mr. Romanescu also ...
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petitioner must also demonstrate tha...
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have others attest to those talents....
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§ 204.5(h)(3) arc worded in the plur...
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establishments as a whole. The petit...
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Had the petitioner submitted the req...
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SVETLANA VISINSCAIA,
Plaintiff,
v. Civil Action No. 13-223 (JE...
2
I. Background
Visinscaia was born in Moldova. See Administrative Record at 519 (Plaintiff’s
Passport). Showing promise a...
3
letters of support from her students and coaches, and more. In light of the evidence, she argued,
she qualified as an im...
4
the APA standard of review. See Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing
Richards v. INS, 554 F. 2d...
5
III. Analysis
USCIS does not disagree that Visinscaia has been a successful competitive dancer for
more than a decade. S...
6
won 1983 World Series of Golf and 1991 Canadian Open, ranked 10th in 1989 PGA Tour,
collected $714,389 in 1991, and rece...
7
As to the last point, the agency first responds that it is not bound by Kazarian, a Ninth
Circuit case of no precedentia...
8
19; Pl. Mot. at 6. In its January 2013 decision, however, the AAO concluded that the 2005
Championship did not qualify a...
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions
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VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions

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VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions

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VISINSCAIA v. NAPOLITANO et al., No. 13-223 (JEB) (D. DC 12-16-2013) Dancesport - AAO and USCIS Decisions

  1. 1. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 1 of 10 TO: s,·etlana Visinscnia 46701 Bullfinch Square Sterling, VA 20164 DECISION U.S. Department orHomeland Security I' ( l Bu ::!7911.10 l>;lllas. lca' 7.52:!7-IJilJO .::~;.,~- 0 ~"';._ U.S. Citizenship ~.~ _ '1:· and Immigration '1: ... s .' ..~..~ ~._<.:",.., erv1ces DATE: AUG 172012 Petition: Form 1-140 File Number: Bcncficinry: SRCI214751254 A205348882 Svctlana Visinscaia Your Form 1-140, Immigrant Petition for Alien Worker. has been denied for the following rcason(s): Sec Attachment You may appeal this decision to the Adniinistrative Appeals Oflice. In the alternative. you may tile a motion to reopen or reconsider with this Service Center. Your appeal or motion to reopen or reconsider must be tiled on Form 1-29013. Notice of Appeal or Motion within 30 days of the date of this notice (33 days if this notice is received by mail). You must mail your Fonn I-290B. along with the appropriate filing fcc ami other documentation in support ofthe app~al or motion. to the correct address. Do not mail your completed Form 1-2908 directly to the Administrative Appeals Oflice or to this Service Center. To obtain the tiling locations. the required tiling fee amount. and more infonnation about the Fonn 1-29013 filing requirements. please refer to the USCIS website at http://www.uscis.gO·/forms. You may also contact the National Customcr Service Center (NCSC) at 800-375-5283. This decision docs not prevent you from filing any petition or application in the fl1ture. Sincerely. ,_i ,· .. );I L---.·/( --K<i- /· ~.'4)'·', .~~ ~.. -: Gregory A. Richardson. Director Texas Service Center Otlicer # XM 1153 cc: Ladan Mirbagheri-Smith Mirhagheri & Smith LLP 1688 East Gude Drive. Suite 20 I Rockville. MD ~0850 Enclosures: Form 1-290R and corresponding instructions www.dhs.gov Rev. OIIU312UI2
  2. 2. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 2 of 10 .. ' . • Receipt No.: SRCI214751254 Page 2 of 10 AtTACHMENT Reference is made to this Immigrant Petition t<Jr Alien Worker (Form 1-140 Petition) filed by you. the petitioner. on your own behalf on May 3. 2012. Form 1-140 Petition seeks to classify you as an alien of extraordinary ability in accordance with Section 203(b)(l )(A) of the Immigration and Nationality Act (INA) as a DanceSport Athlete and Coach. After consideration. it is the decision of U.S. Citizenship and Immigration Services (USCIS) to deny this Form 1-140 Petition. INA Section 203(b)( I)(A) defines an •·alien with extraordinary ability"' in the following tenns: --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 benelit prospectively the Unitcd States. 8 Code of Federal Regulations (C.F.R.). Section204.5(h)(2) defines '"extraordinary ability"' as: A level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field ofendeavor. USCIS and the legacy Immigration and Naturalization Service (INS) have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas in the extraordinary ability classification. See 56 Federal Register 60897.69898-99 (Nov. 29. 1991 ). 8 C.F.R. Section 204.5(h)(3) indicates that an individual can establish sustained national or international acclaim through evidence of a one-time achievement (that is. a major. internationally recognized award). Barring the individual's receipt of such an award. the regulation outlines ten criteria. at least three of which must be satisfied for an individual to establish the sustained acclaim necessary to qualitY as an individual of extraordinary ability. The criteria are outlined below. (i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field ofendeavor: (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 ofthe material. and any necessary translation~ www.dhs.gov Rc'. lll/ll3/2012
  3. 3. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 3 of 10~ . Receipt No.: SRCI214751254 Page 3 of 10 (iv) Evidence ofthe alien·s participation. either individually or on a panel. as ajudge of the work ofothers in the same or an allied field ofspecialization lor which classification is sought: (v) Evidence of the alien·s original scientific. scholarly. artistic. athletic. or business-related contributions ofmajor 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 perfonned in a leading or critical role for organization-. or establishments that have a distinguished reputation: (ix) Evidence that the alien has commanded a high salal)' or other significantly high remuneration for services. in relation to others in the field: or (x) Evidence of commercial successes in the perlorming arts. as shown by box onice receipts or record. cassette. compact disk. or video sales. Additionally. 8 C.F.R. Section 204.5(h)(4) states. ··If the above standards do not readily apply to the beneficial)''s occupation. the petitioner may submit comparable evidence to establish the beneficial)''s eligibility.'' In reviewing this petition. USCIS will first consider the evidence in relation to the plain language of the above criteria. If the individual has received a one-time achievement (a major internationally recognized award) or meets at least three criteria. USCIS will then consider the evidence in the context of a final merits determination. However. the fact that an individual meets the minimum requirement of providing required initial evidence does not. in itself. establish that the individual is one of the small percentage who have risen to the very top of the field of endeavor. and that the beneficiary has sustained national or international acclaim in the field.111 A review of your file and l JSCIS records did not establish that the submitted evidence was suflicient to warrant CJ f.1Vorable decision. On May II. 2012. USCIS issued a request for evidence to address several deficiencies in the petition. Your response was received on August 6. 2012. Prior to making a final decision. USCIS reviewed in totality the initial evidence submitted with the petition and the response lor additional evidence. I. Analysis of Criteriaf21 You claim that you were awarded the First Place at the 2005 International DanccSport Federation (IDSF) World Junior II Ten Dance Championship. You submined the following evidence to establish that you received a one-time achievement award: I. Certification from the President of the Moldova DanceSport Federation attesting that you "won the World DanceSport Championship in the category ·•Juniors 2". I0 dances. on 23.04.2005... {1) This test was set forth in Kazarian v. USCIS, 2010 WL 725317 (9th Cir. March 4, 2010). [2] You do not claim to meet or submit evidence relating to the regulatory criteria not discussed in this decision. www.dhs.gov Rc'. llltn.J/2012
  4. 4. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 4 of 10' . ~ Receipt No.: SRCI214751254 Page 4 of 10 2. Copy ofOilicial program for the 2005 Juniors II World Championship 3. Copy of Diploma from IDSF World Junior II Ten Dance 2005 4. Photographs 5. Letter from Svctlana Gozun. MDSF Presidium Member. who confirms that you won first place in 2005 at the World DanceSport Federation (WDSF) World Championship in the Junior Ten Dance Category 6. Background information on the World DanceSport Federation 7. 2005 ranking ofthe IDSF Open Junior II Ten Dance from worlddancesport.org. dancepl:v_a.com and www.spaekcr.de. verifying that you ranked first in the Ten Dance category 8. History ofDanceSport written in the Berkshire Encyclopedia ofWorldSport However. based on a review of the documentary evidence submitted. you failed to establish that the claimed award equates to a one-time achievement pursuant to the plain language of the regulation at 8 C.F.R. § 204.5(h)(3). Given Congress' intent to restrict this category to "that small percentage of individuals who have risen to the very top of their field of endeavor." the regulation permitting eligibility based on a one-time achievement must be interpreted very narrowly, with only a small handful of awards qualifying as major, intemationally recognized awards. See H.R. Rep. 101-723. 59 (Sept. 19. I 990). reprinted in 1990 U.S.C.C.A.N. 6710. 1990 WL 200418 at *6739. Given that the House Report specifically cited to the Nobel Prize as an example of a one-time achievement. examples of one-time awards which enjoy major, international recognition may include the Pulitzer Prize. the Academy Award, and (most relevant for athletics) an Olympic Medal. The regulation is consistent with this legislative history. stating that a one-time achievement must be a mt~jor. imemational~v rec:o~nb•d award. 8 C.F.R. § 204.5(11)(3). The selection ofNobel Laureates. the example provided by Congress. is reported in the top media internationally regardless of the nationality of the awardees. is a lluniliar name to the public at large and includes a large cash prize. An internationally recognized award could conceivably constitute a one-time achievement without meeting at least three out of ten criteria outlined by the regulation. however the award must be global in scope and internationally recognized in your field as one of the top awards in that field. USCIS is not persuaded that the claimed award is remotely comparable to such major, internationally recognized avards as the Pulitzer Prize. the Academy Award. or an Olympic Medal. You failed to submit any independent. objective documentation beyond the website rankings. attestation letters. a copy of the first place diploma and general information about dancesport. to demonstrate that winning of the above award is considered as a major. internationally recognized award. Further. USCIS notes that you base your eligibility on junior-level competition. The award won by you in competition that is limited by your age status do not indicate that you are "one of that small percentage who have risen to the very top ofthe field ofendeavor:· According to the International Danccsport Federation website. the following age division is obligatory in all international competitions and championships: Juvenile 1: reach 9th birthday or less in the calendar year Juvenile II: reach IOth and II th birthday in the calendar year Junior 1: reach 12th and 13th birthday in the calendar year Junior II: reach 14th and 15th birthday in the calendar year Youth: reach 16th. 17th and 18th birthday in the calendar year Adult: reach 19th birthday or more in the calendar year Senior 1: reach 35th birthday or more in the calendar year Senior II: reach 45th birthday or more in the calendar year Senior l1: one partner must have reached his or her 55th birthday or more in the calendar year. The other partner must have reached his or her 45111 birthday or more in the calendar year www.dhs.gov Rev. 01/03/2012
  5. 5. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 5 of 10.' Receipt No.: SRCI214751254 Page 5 of 10 Junior II Ten Dance Award is limited to competitors from the ages 14-15. rather than open to the top. experienced professionals in the field. Awards that limit competition by age. experience. etc.. rather than being open to the top competition are not qualifying for this criterion. Therefore. the evidence submitted by you failed to establish that you Htced significant competition from throughout your field. rather than mostly limited to individuals in certain age status competition. While you established that you had success in a competition restricted to other junior participants. you f.1iled to meet this regulatory requirement that this visa category be reserved tor "that small percentage of individuals who have risen to the very top oftheir field ofendeavor." You failed to submit sufficient evidence to demonstrate that you have received a one-time achievement that is a major, internationally recognized prize or award. As a result, the evidence must demonstrate that you have fulfilled at least three of the ten criteria listed in the regulations. USCIS will analyze the evidence that was submitted under each criterion below. Evitle11ce ofymtr receipt oflesser mttimmlly or illtertmtimmlly recog11izetl prizes or ttwttrtl."i fiJr excellence ;, tilejieltl ofemlettVtJr. You state that you won a total of sixty six (66) medals in individual and team competitions at the club. city. state. regional, national. and international levels. You submitted the following evidence: I. Copies of Moldova Dance Sport Federation (MDSF) competition booklets covering years 1997 to 2008 verifying the competitions that you competed in as an athlete 2. Charts listing your tournament competitions and awards from 2002-2008 3. Many certificates verifying that you won awards at various dance competitions 4. Photographs ofyour medals and trophies 5. Attestation letters This criterion contains three evidentiary elements that you must establish. The first derives from the clear regulatory language that you be the recipient of the prizes or the awards. The next element is that the evidence establishes that the prizes or the awards have received national or international recognition. The final requirement relates to the criteria required to receive each award. which would indicate if the issuing entity base their award selection on excellence in your field ofendeavor. Evidence submitted must satisfy all ofthese clements to meet the plain language requirements of this criterion. 1 nationay or internationally recognized prizes or awards should be issued by a nationally recognized and distinguished entity and for which the most renowned and experienced members of the field nationally or internationally compete. However. you have not established that your awards recognize excellence in the field as judged by experts. Simply submitting evidence relating to a criterion is insuflicicnt. Secondly. you have not demonstrated what classifies your awards and prizes as National or International awards for excellence in your field. It is noted that although many certificates have the words "National/International" in the title. you have not demonstrated what classifies your awards as National or International awards for excellence in your field. The record docs not include evidence to demonstrate that your awards command a substantial level of recognition. You submitted many certificates. photographs. charts and reference letters to support your claim of eligibility. While the documentation reflects that you won many awards. this is not necessarily indicative of nationally or internationally recognized prizes or awards lor excellence in your field. for example. the record does not contain evidence that the field recognizes the awards through trade media covcmge of the awards selections. Likewise. you did not demonstrate that your name or the awards are a f.1miliar name to the public at large or that a large cash prize was given to you tor the receipt of the awards. The record docs not contain any independent evidence to substantiate your claim that your awards are recognized as the highest level of competition in dancesport. Rather. most ofyour awards appear to be limited by age to junior competitors. www.dhs.gov Rev. 01/03/2012
  6. 6. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 6 of 10 .. Receipt No.: SRC1214751254 Page 6 of 10 Furthem1ore. USCIS is not persuaded that the submitted recommendation letters. which merely summarize and list your personal achievements demonstrate that the First Place at the 2005 International DanceSport Federation (IDSF) World Junior II Ten Dance Championship or recognition as the National Dancer ofthe Year are nationally or internationally recognized for excellence. It is your burden to establish eligibility for every clement of this criterion. You must demonstrate that you received the awards and prizes and establish that those awards and prizes are nationally or internationally recognized for excellence in your field. In other words. you must establish that the awards and prizes are recognized nationally or internationally beyond the awarding entities. The evidence submitted by you failed to establish eligibility for this criterion. Merely submitting documentary evidence establishing that you received awards or prizes is insufficient to meet this regulatory criterion. which also requires the awards or prizes to be nationally or intemationally recognized f<Jr e.xcellence. Relevant considerations regarding whether the basis for granting the prizes or awards as national or intemational recognition for outstanding achievement in the field include. but are not limited to: any limitations on competitors. such as age: the criteria used to grant the awards or prizes: or the number of awardees or prize recipients. In light of the above, you have not established that you received nationally or intemationally recognized ''awards for excellence in the field ofendeavor." As such. the evidence submitted does not meet this criterion. Documenttttitm ofyour member.·ltip ;, tu.mc:iations in litefieldfi~r wlticll c/a.-..oiijicatitm i· sought, wlticlt ret111ire out.oitmu/ing ttcltievements of tlteir members, as jmlgetl by recognizet111atimltll or illlermttimllll experts in their disciplines orfie/tis. No evidence has been provided for this criterion. Publislletl material ttbolll you in professimltll or nuljtJr tratle publicatitms tJr other 111tljor meditl, relating ttl tile bem!ficiary's work in lite fieltl for wltic:lt c:lttS.'tijic:tltioll i.-. .mughi. SueII evifle11c:e .'IIIliII inc:lmle tile title, tltlle, mul tmtlwr oftile mtllerial, mul any nece.'IStll)' transltttimt. This criterion has been met. Evidence ofyour ptlrlicipation, eitlter imliviflual/y or 011 a pa11el, as a jllllge tiftile WtJrk ofotlters in tile .mme or allietlfield. No evidence has been provided for this criterion. Evidence oftile belleficiary•'s origi11t1/ .-.cielllijic:, sclwlar/y, arti·tic:, ttlltletic, or btuine.-.s- relatetl ctmtriblllimts tifmtljtJr .-.igllijictmce ill litefield. To demonstrate that you meet this criterion. you submitted eight letters ofrecommendation. Evidence must demonstrate that your contributions arc not only original. but thut they arc ofm~jor significance in the field. The evidence docs not demonstrate the m~jor significance ofyour original contributions. Letters of recommendation written by experts may be helpful; however, the major significance of your work must be demonstrated by preexisting, independent. and o~jective evidence. These following excerpts from three letters arc illustrative ofthe letters as a whole: www.dhs.gov Rev. 01/03/2012
  7. 7. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 7 of 10~ Receipt No.: SRC I2I475 I254 Page 7 of 10 Natalia Oreshina. Professional Ballroom Dancer. states: "I can certifY that Svetlana is an extraordinary dancer who is a recognized world champion. Furthermore. she has made unique contributions to the world of Dance Sport in general. and competitive ballroom dancing in particular. that is exhibited through her execution of the Tango." Vladlcn Oleineac. Ballroom Dancer. writes: "Svctlana Visinscaia is an excellent instructor and was a tremendous resource for me as I developed my style and became more and more known on the national and international circuit. One of the key f.1ctors that sets Ms. Visinscaia apart from other instructors I have had in the past is her ability to speak directly to the correlation between technique. form. and competition lines." Egor Abashkin and Katia Kanevskaya. Ballroom Dance Competitors. note: "She has developed technical innovations in her moves that arc being emulated by other competitors and instructors who study her unique adaptations in order to improve their own performances... The plain language of this regulatory criterion contains multiple evidential}' elements that you must satisfy. The first is the evidence of your contributions (in the plural) to your field. These contributions must have already been realized rather than being potential. future contributions. You must also demonstrate that your contributions arc original. The evidence must establish that the contributions are scientific. scholarly. artistic. athletic. or business-related in nature. The linal requirement is that the contributions rise to the level of major significance in the field as a whole. rather than to a prq_jcct or to an organization. Contributions of major significance connotes that your work has significantly impacted the field. You must submit evidence satisfying all ofthese elements to meet the plain language requirements ofthis criterion. In detern1ining whether you have conveyed original contributions of major significance to the field. specific information is important. Without specific facts regarding a contribution of m~jor significance to the field. general statements asserting your expertise and "extraordinal}' ability" is not sufficient to establish eligibility lor this criterion. Letters of recommendation written by experts may be helpful: however. the rmtior significance of your work must be demonstrated by preexisting. independent. and objective evidence. Even though it appears that you are an accomplished ballroom dancer. the letters do not spccif)· how you have contributed to the field as a whole. The authors of the submitted letters state that you perform the Viennese Cross movement using a foot pressure that makes it look particularly strong. demonstrate a remarkable control and execution of the pivot movement in the Tango. impress your audience with a pristine technique and style. and developed certain weight transfer techniques. However. the evidence docs not show that your talent and technique~; have been transmitted on a major scale to others in your field. Merely participating in multiple events is not in itself evidence of a major contribution to the profession. or tar greater importance in this proceeding is the impact that your work has already had on the overall field. You cannot meet this criterion simply by providing reference letters from your colleagues. To satisfy the criterion relating to original contributions of nu~jor significance. you must demonstrate not only that your work is novel and useful. but also that it has had a demonstrable impact on your field as a whole. Moreover. a contribution to your students is not necessarily an original contribution to the field as a whole. f"inally. in the response to the request lor evidence. you submitted two letters from experts in your field. However. Igor and Polina Pilipcnchuk. World and National Class Adjudicators and former DanceSport competitors. state that you were not known to them prior to being contacted about providing an evaluation. Bill Davies. International Competitor. Judge. Chairman and advocate for Dance Sport. states that he based his endorsement on reviewing your impressive resume. Opinion from experts who were not previously aware ofyour work. and arc simply reviewing your record ofaccomplishmcnts or resume. cannot by itselfestablish that your work is recognized for contributions to the field as a whole. www.dhs.gov Rev. 01/03/2012
  8. 8. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 8 of 10 Receipt No.: SRC1214751254 Page 8 of 10 While it appears that you are knowledgeable and skillful in your field. the record fails to establish that you have made a contribution of m~jor significance in the field. You are praised as a great performer and participated in many youth competitions. However. you have not shown how the field has changed as a result ofyour work. You have not provided specific evidence showing that your work has been original. influential, or otherwise risen to the level ofcontributions ofmajor significance to your field. Letters of support alone arc not sutlicicnt to meet this criterion. Letters. though not without weight. cannot form the cornerstone ofa successful extraordinary ability claim. USCIS may. in its discretion usc such letters as advisory opinions submitted by expert witnesses. However. USCIS is ultimately responsible for making the final determination of the alien's eligibility [Matter of Caron International. 19 I&N Dec. 79. 795 (Commr.988)}. Without extensive documentation showing that your work has made original contributions ofmajor significance to the field. USCJS cannot conclude you meet this criterion. As such. the evidence submitrcd docs not meet this criterion. Evicle11ce ofytmr autlum1/rip tif sclwltlriJ' ttrlicles ill tlte field, i11 profe.'isimml or 11uljor trade public:ttlimts or tJI/ter major media. No evidence has been provided lor this criterion. El•ide~~ce tiftire di'ipltl)' tifyour work i11tltefield tllllrtistic exltibititms or .'ilwwca:e.·. You claim that you have been a frequent performer at the National Palace of Moldova in Chisinau. To support your claim. you provided the following evidence: I. Attestation letter from Goga Valentin, General Manager ofthe National Palace of Moldova 2. Printout from www.itravcl.md website which describes the National Palace 3. Sample promotional materials for performances by national and international artists from Moldova. France. Gennany and Russia In the request for additional evidence. the USCIS asked you to provide materials created for the purpose of promoting your artistic works. sales records listing you as the creator ofthe sold works. evidence that the venue (virtual or otherwise) where your work was displayed were artistic exhibitions or showcases and materials created to promote and publicize your artistic exhibitions or showcases. Rather than submitting supporting evidence. you have instead submitted one attestation letter from a General Manager who attests that you have been invited to perform at the National Palace of Moldova over twenty (20) times. Further. you submitted sample promotional materials lor performances by other national and international artists from Moldova. France. Gennany and Russia. However. you failed to provide brochures or advertisements that specifically reference your perfonnanccs. Aflidavits from individuals with direct personal knowledge arc only pennissible in lieu of primary evidence when you demonstrate that both primary and secondary evidence arc nonexistent or unavailable. Going on record without supporting documentary evidence is not sufficient lor the purpose of meeting the burden of proof in these proceedings. The nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. Although counsel states that you have been a prominent and featured performer on multiple occasions. without documentary evidence to support the claim. the asse11ions will not satisfy the burden of proof. The unsupported assertions of counsel do not constitute evidence. Mauer r~f Obai}.!hena. 19 I&N Dec. 533. 534 (BIA1988): Malter l?{ Laureano. 19 I&N Dec. I. 3 (Bl A 1983): Mauer c?fRamire=-Sanche=. 17 I&N Dec. 503. 506 (BIA 1980). Vww.dhs.gov Rc'. 01/03/2012
  9. 9. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 9 of 10 Receipt No.: SRC 1214751254 Page 9 of 10 Moreover. the ten criteria in the regulations arc designed to cover diiTerent areas. Not every criterion will apply to every occupation. Further. not every display of work before a general audience is an artistic exhibition or showcase. It is inherent to the position of a dancer to perform on stage or in public. Without evidence that you performed in exclusive showcases designed to exhibit your art. it cannot be concluded that you meet this criterion. To allow any artist whose work has been submitted f(lr public display to satisfy this criterion would defeat the restrictive nature of Section 203(b)( I)(A) of the Act. and would render this criterion meaningless. As such. the evidence submitted docs not meet this criterion. Evidence yo11 /rave perjim11etl ill a /eadi11g or critical rtJ/e for tJrga11izatitms tJr esttlhlislmrellts that luwe tl tli!;tillglliflletl reputatio11. You claim that you perfom1ed in a leading or critical role for Club Codreanca. This criterion anticipates that a leading role should be apparent by its position in the overall organizational hierarchy and that it be accompanied by the role's matching duties. A critical role is one in which the individual was responsible for the success or standing of the organization or establishment and should be apparent from your impact on the organil'ltlion or the establishment's activities. Your perfonnance in this role should establish whether the role was critical for organizations or establishments as a whole. You must demonstrate that the organizations or establishments (in the plural) have a distinguished reputation. You must submit evidence satisfYing all ofthese clements to meet the plain language requirements ofthis criterion. However. you have not submitted documentary evidence to demonstrate how your role was and is leading or critical for the claimed organization. You f.1iled to provide any description ofa specilic instance in which your perfonnance was deemed leading or critical for this organization. Details beyond generalities are required. such as the specific tasks or accomplishments ofthe position. Petru Gozun. President of Club Codrcanca. states: "I came to know Svetlana at an early age when she was selected as a candidate to train at Codrcanca Club and later became the instructor at the club. The instuctors of Codreanca Club are all nationally and/or internationally accomplished dancers who have distinguished themselves from their peers in their licld of specialty. They must be unanimously approved by the Board of Directors of Codreanca to be given the prestigious position of instructor at the club. The criteria used by the Board members in approving an instructor arc: receipt of prestigious awards. media recognition and extensive experience in the field of endeavor. Currently. Codreanca has 30 instructors and many of them are world famous champions such as Svetlana Gozun. Elena Gozun. Nicolai Oreschin. and. Andrei Gruzin.'' USCIS is not persuaded that the submitted recommendation letter which merely reflects your involvement with Club Codreanca. demonstrates that you performed in a leading or critical role for the organization as a whole. You must establish that you have played more than just a supporting role. Moreover. the regulation for this criterion requires the leading or critical role to organizations or establishments that have a distinguished reputation: not the performance ofa leading or critical role to the success of your students. Further. the evidence provided by you docs not specifically articulate how you are any more leading or critical to the outcome and objectives for Club Codreanea than the other thirty (30) instructors associated with th!s organization. Finally. even if you could establish that your role as an athlete and instructor was leading or critical. you failed to meet the plain language of the regulation which requires leading or critical roles in more than one organil'ation or establishment. As such. the evidence submitted does not meet this criterion. www.dhs.gov Rc·. 01/0J/2012
  10. 10. Case 1:13-cv-00223-JEB Document 1-3 Filed 02/21/13 Page 10 of 10... .- , Receipt No.: SRCI214751254 Page 10 of 10 El•itlem:e tlmt )'Oil have ctmmumtletl 11 ltigll !utltii'J' or other!iigllijicalllly ltiglt remu11eratio11 fiJr :;en•ices, i11 relatio11 to otlter.v ;, tilejieltl. No evidence has been provided for this criterion. E••itlem:e oft.•ommercia/ succe.:·es i11 tile petformillg tlrts, tiS slumm by htJX office receipts or rectJrtl, t.'tl.'i."e«e, compttct tli·k, tiT J•itleo sale.'i. No evidence has been provided for this criterion. Upon review. USCIS finds that you have not received a one-time achievement (a major internationally recognized award) or do not meet at least three of the ten criteria. Since you have not established by a preponderance of the evidence that you meet at least three of the antecedent evidentiary prongs. USCIS will not conduct a final merits determination to determine whether you have reached a level of expertise indicating that you arc one of that small percentage who have risen to the top of the field of endeavor. and whether you have sustained acclaim. Therefore. USCIS does not find you to be an individual ofextraordinary ability. Pursuant to Section 291 of the INA. whenever any person makes an application for an immigration benefit. they shall bear the burden of proof to establish eligibility. Accordingly. you must prove by a preponderance of the evidence. in other words. that it is more likely than not. that you are fully qualified for the benefit sought. See Mauer of E-M-. 20 I. & N. Dec. 77 (BIA 1989). After a careful review and analysis of all evidence within the record. USCIS finds that you have not established eligibility for the benefit sought. As a result. USCIS is denying this Form 1-140 petition. www.dhs.gov Rev. 01/03/21112
  11. 11. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 1 of 16Department of Homeland Security ~ U.S. Citizenship and Immigration Servk ~m I-797C, Notice of Action !THIS NOTICE DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT. -- RECEIPT NUMBER SRC-12-903-91658 RECEIPT DATE PRIORITY DATE September 19, 2012 NOTICE DATE October 5, 2012 LADAN MIRBAGHERI SMITH 1688 E GUDE DR STE 201 ROCKVILLE MD 20850 PAGE 1 of 1 CASETYPE I2908 NOTICE OF APPEAL TO THE COMMISSIONER PETITIONER MIRBAGHERI SMITH, LADAN BENEFICIARY VISINSCAIA, SVETLANA Notice Type: Transfer Notice This courtesy notice is to advise you of action taken on this case. The official notice has been mailed to the authorized representative. Any relevant documentation included in the notice was also mailed as part of the official notice. This is to advice you that in order to speed up processing we have transferred the above case to the_following USCIS office for processing: users Admin Appeals Office, 20 Mass Ave. NW, MS 2090, Washington, DC 20529-2090 That office will notify you of the decision made on the application or petition. Please read the following information before attempting to contact the National Customer Service Center for an update: Please refer to the users processing dates webpage, via the users home webpage http:/Jwww.uscls.gov/graphlcsllndex.hun. to locate the processing dates for the specific service center that your case was transferred to. If the service center is within processing time for your particular application or petition, USCIS cannot provide an update on your case. If the service center is outside of processing time for your particular application or petition, please call Customer Service at 1-800-375-5283 to request an update. Please read the following information if you submitted a Premium Processing application or petition: Please contact the Premium Processing phone number at 1-866-315-5718 !or inquiries. The 15-day Premium Processing clock does not start until the correct office receives the application or petition. Please see the additional information on the back. You will be notified separately about any other cases you filed. IMMIGRATION & NATURALIZATION SERVICE Customer Service Telephone: (800) 375-5283 Please see the back of this notice for important information. Form I-797C 01/02112 Y
  12. 12. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 2 of 16 Notice for Customers with Disabilities USCIS is committed to providing customers with disabilities the same level of access to its programs and activities that customers without disabilities have (see the USCIS Web site for an explanation and examples of accommodations). If you need an accommodation for your appointment due to a disability that affects your access to a USCIS program or activity OR if a disability prevents you from going to the designated USCIS location for your appointment, please call the National Customer Service Center (NCSC) at 1-800-375-5283 (TDD: 1-800-767- 1833) to request an accommodation. Call the NCSC even if you indicated on your application or petition that you require an accommodation. Also, you must contact the NCSC to request an accommodation each time you have an appointment with USCIS. For example, you must call the NCSC to request an accommodation for your biometrics appointment and again for an accommodation for your interview appointment. NOTICE: All domestic USCIS offices are accessible to individuals with physical disabilities. You do not need to request an accommodation if your ONLY need is an accommodation that would enable or facilitate you having physical access to a domestic USCIS office. Note: Naturalization applicants should not call the NCSC to request an exception from the English and/or civics testing requirement. You must submit Form N-648, Medical Certification for Disability Exceptions to request an exception. See the form instructions for additional information.
  13. 13. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 3 of 16 SVETLANA VIS INSCAI/ ..tn70 I 8ULLFINCII SQUARE STERLI NG. VA 20 16-t-7037 DATE: IN RE: JAN 222013 Pctitioner: 8encl'iciary: Office: TEXAS SERVI CE CENTER SVETLANJ VISINSCJ1/ SVET LANA VIS INSCJ1/ .S. Department uf llumcland Srcurit)' U.S. Citizcn~hip and Immigration Sen icc~ tdmini~trati ' c , ppcab Ofti~.: (tt0) 20 :'.la~'achu~cw. 1c.. N.W.. ~IS 2090 Washington. DC 10519-10')0 U.S. Citizenship and Immigration Services Fl LE: A 205 34H 882 SRC 12 147 5 1254 PETITION: Immigranl Pe1i1ion for Alien Worker as an /lien of Extraordinary Abili1y Pursuant 10 Sec1ion 2{):)(b)( I)(/) of the Immigration and Nationality Jct, 8 U.S.C.~ 1153(b){ 1)(/) ON 8 EIIA LF OF PETITIO ER: LAD/ M IRBAG HERI-SM ITH M IRI3AGIIERI & SM IT H. L LP 16R8 EAST GUDE DRIVE, SUITE 20 1 ROCKVILLE, MD 20850 INSTRUCriONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this mauer have been returned to the office thatmiginally decided your case. Please be advised that any further inquiry that you might have concerning your case must he made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion 10 reopen in accordance with the instructions on Form l -29013, Notice of Appeal or Motion, with a fee of $630. Tht: spe<.:ific requirements for filing such a motion can be found at H C.F.R. § 103.5. Do not file any motion directly with the AAO. Please he aware that 8 C.F.R. § 10:1.5(a)( l)(i) requires any motion to be fi led within 30 de1ys of the decision that the motion seeks to reconsider or reopen. Thank you. #IJI_ r- Ron Rosenberg Acti ng Chief, Administrative Appeals Office www.uscis.gov https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens %20with%20Extraordinary%20Ability/ Decisions_Issued_in_2013/JAN222013_02B2203.pdf
  14. 14. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 4 of 16 A205 348 882 Page2 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 dismissed. The petitioner seeks classification as an ''alien of extraordinary ability" in athletics as a Dancesport Athlete and Coach, pursuant to section 203(b)(l)(A) of the Immigration and Nationality 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. 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. The petitioner's priority date established by the petition filing date is May 3, 2012. On May 11, 2012, the director served the petitioner with a request for evidence (RFE). After receiving the petitioner's response to the RFE, the director issued his decision on August 17, 2012. On appeal, the petitioner submits a brief with no additional documentary evidence. For the reasons discussed below, the AAO upholds the director's ultimate detem1ination that the petitioner has not established her eligibility for the 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
  15. 15. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 5 of 16 A205 348 882 Page 3 (iii) the alien's entry into the United States will substantially benefit prospectively the United States. 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 lOlst 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. !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 alien's sustained acclaim and the recognition of his or her 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.1 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." /d. at 1121-22. 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)." /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 considered in the context of a final merits determination. In this matter, the AAO will review the evidence under the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of three types of evidence. /d. 1 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).
  16. 16. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 6 of 16 A205 348 882 Pagc4 II. ANALYSIS A. Proper Standard of Proof Counsel indicated on the Form 1-2908, Notice of Appeal or Motion, Part 3 that instead of applying the preponderance of the evidence standard of proof, the director applied a higher standard. The record does not support counsel's assertion that the director held the petitioner's evidence to an elevated standard beyond that which is required by most administrative immigration cases, the preponderance of the evidence standard of proof. The most recent precedent decision related to the preponderance of the evidence standard of proof is Matter of Clrawatlre, 25 I&N Dec. 369 (AAO 2010). Counsel cited this decision on the Form 1-2908. The preponderance of the evidence standard does not preclude USCIS from evaluating the evidence. The Clrawathe decision stated: [T]he "preponderance of the evidence'' standard does not relieve the petitiOner or applicant from satisfying the basic evidentiary requirements set by regulation. There are no regulations relating to a corporation's eligibility as an "American firm or corporation" under section 316(b) of the Act. Had the regulations required specific evidence, the applicant would have been required to submit that evidence. Cf 8 C.F.R. § 204.5(h)(3) (2006) (requiring that specific objective evidence be submitted to demonstrate eligibility as an alien of extraordinary ability). 25 I&N Dec. at 375 n.7. The final determination of whether the evidence meets the plain language requirements of a regulation lies with USCIS. See Matter of Caron Imernational, 19 I&N Dec. 791, 795 (Comm'r 1988) (finding that the appropriate entity to determine eligibility is USCIS). Ultimately, the truth is to be determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r 1989)). The Chawathe decision further states: Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or ''probably" true, the applicant or petitioner has satisfied the standard of proof. See INS"· Cardoza-Fonseca, 480 U.S. 421,431 (1987) (discussing ''more likely than not" as a greater than 50% chance ofan occurrence taking place). If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition. /d. As the director concluded that the petitioner had not submitted relevant and probative evidence satisfying the regulatory requirements, the AAO concludes that the director did not violate the appropriate standard of proof. According to this analysis, the AAO affirms the director's ultimate conclusion that the evidence does not establish the petitioner's eligibility.
  17. 17. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 7 of 16 A205 348 882 PageS B. Additional Claims of Error on Appeal On the Form 1-2908, counsel also attributes three additional general errors to the director. First, counsel asserts that the director imposed novel substantive and evidentiary requirements beyond those in the regulation and that the director's decision was in direct conflict with agency guidance. Second, counsel cites Buletini v. INS, 860 F. Supp. 1222, 1234 (E.D. Mich. 1994}, indicating the director incorrectly applied the regulations. Third, counsel cites Matter ofPrice, 20 I&N Dec. 953 (Act. Assoc. Comm·r 1994), asserting the director's ··discussion of the different regulatory criteria at times is inherently inconsistent, manipulative, diverges from the relevant facts and issues that should be considered under each criterion. As such, the Director abused his discretion in denying the instant petition." Within the appellate brief counsel failed to provide examples of these alleged errors or to identify conclusions that resulted from these alleged errors. Therefore, the AAO will not address counsel's general assertions on the Form 1-2908 within this decision. C. Evidentiary Criteria2 One-time achievemem. As the claimed one-time achievement, defined at 8 C.F.R. § 204.5(h)(3) as a major internationally recognized award, the petitioner submitted evidence of her first place finish at the 2005 World DanceSport Federation World Championship in the Junior II Ten Dance Category. The director determined that this award did not amount to a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3) as the petitioner failed to provide evidence demonstrating the award was reported in top international media. The director further concluded that the award also falls short of a one-time achievement as it is not recognized as one of the top awards in the field as a whole, rather than within an age-limited category within the field. The director noted that the Junior II category is limited to participants whose fourteenth or fifteenth birthday occurs during the calendar year in which the competition took place. With regard to a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3), a Federal Court recently stated: The ... debate over what constitutes a "major" international award [is one] that neither party can hope to win. Common experience draws no line of demarcation between those awards that are "major'' and those that are not. The applicable law in this case draws no clearer line, other than to establish that some awards are ••major, international recognized award[s]" and others are ••Jesser nationally or internationally recognized prizes or awards". 8 C.F.R. § 204.5(h)(3) & (3)(i). Nothing in either the INA or the regulations implementing it explains how USC1S or a reviewing court is to differentiate between ..major'' and lesser awards. In legislative history, Congress named the Nobel Prize as its 2 The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence not discussed in this decision.
  18. 18. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 8 of 16 A205 348 882 Page6 sole example of a major, internationally recognized award that would by itself demonstrate ''extraordinary ability." Kazarian, 596 F.3d at 1119 (citing 1990 U.S.C.C.A.N. 6710, 6739). No one suggests that an alien must win a Nobel Prize to qualify, and no one suggests that [the petitioner's] awards are on par with a Nobel Prize. What awards less prestigious and recognized than the Nobel Prize qualify as major, international awards is a question that the law does not answer. There is little question, moreover, that Congress felt it unnecessary and perhaps inadvisable to define "major" in this context. It entrusted that decision to the administrative process. Rijal v. U.S. Citizenship & Immigration Services, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) ajJ'd, 683 F.3d 1030 (9th Cir. 2012). This same court determined that USCIS did not act arbitrarily and capriciously when it: [C)onsidered the relevant factors and articulated a rational connection between the facts it found and the choice it made. USCIS explicitly considered the awards and all of the evidence [the petitioner] submitted to support his claim that they were major, international awards. USCIS articulated a rational connection between those facts and its conclusion that his awards were not "major." [Evidentiary citation omitted.] Another adjudicator might have come to a different conclusion, but that is irrelevant. Unless the court can conclude that no rational adjudicator would have come to that conclusion, the USCIS did not act arbitrarily and capriciously. /d. at 1345-46 ajfd, 683 F.3d 1030. Counsel states within the appellate brief: "Where the Director then errs most profoundly is to also provide a short list of other awards [in addition to the Nobel Prize] which he presumes would meet the intent of Congress. His error is not that such awards would not be approved of by Congress, his error is in making a list at all." The director's list, however, was an example of other awards that the director stated '"may" serve as a qualifying one-time achievement. The director did not indicate that his list was an exclusive list of qualifying one-time achievements. Regardless of whether it is appropriate to list examples of potentially qualifying awards, the AAO concurs with the director's ultimate conclusion that the petitioner has not demonstrated a qualifYing one-time achievement. Congress' example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The regulation is consistent with this legislative history, stating that a one-time achievement must be a major, imemationally recognized award. 8 C.F.R. § 204.5(h)(3). Significantly, even lesser internationally recognized awards could serve to meet only one of the ten regulatory criteria, of which an alien must meet at least three. 8 C.F.R. § 204.5(h)(3)(i). The selection of Nobel Laureates, the example provided by Congress, is reported in the top media internationally regardless of the nationality of the awardecs, is a familiar name to the public at large and includes a large cash prize. While an internationally recognized award could conceivably constitute a one-time achievement without meeting all of those clements, it is clear from the example provided by Congress
  19. 19. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 9 of 16 A205 348 882 Page 7 that the award must be internationally recognized in the alien's field as one of the top awards in that field. The AAO atlirms director's determination that the petitioner failed to provide evidence to establish that her first place finish was a qualifying one-time achievement that is, a major, internationally recognized award, as her finish was not reported in top international media and the competition was limited to those younger than 15 years of age and was not open to the petitioner's entire field such that it can be considered one of the top awards in the field. Documentation l?{ the alien 's receipt of lesser national(y or internationally recognized prizes or awards for excellence in the field ofendeavor. This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien is the recipient of the prizes or the awards (in the plural}. The clear regulatory language requires that the prizes or the awards are nationally or internationally recognized. The plain language of the regulation also requires the petitioner to submit evidence that each prize or award is one for excellence in the field of endeavor rather than simply for participating in or contributing to an event or to a group. The petitioner must satisfy all of these elements to meet the plain language requirements of this criterion. The petitioner provided numerous medals and certificates relating to her performance in dancesport. The director determined that the petitioner failed to meet the requirements of this criterion. The petitioner has demonstrated that she has received prizes or awards issued for excellence in the field of endeavor. The remaining requirement that the petitioner must establish is that at least two of the prizes or awards themselves are nationally or internationally recognized. Counsel's appellate brief asserts that the director erred with regard to whether the petitioner's prizes or awards are nationally or internationally recognized and that the director's conclusion is inconsistent with the director's finding that there exists published material about the petitioner in qualifying media. Counsel asserts the prizes or awards are nationally or internationally recognized based on the stature of the issuing authority or on the stature of the event at which the accolade was issued. Even if the petitioner were to establish that the competitions are nationally or internationally recognized, this level of acknowledgement does not automatically impute such recognition to every level of prize or award available at the competition. A prize or an award does not garner national or international recognition from the competition in which it is awarded, nor is it derived from the individual or group that issued the award. A national or international level competition may issue lesser awards that merely receive local or regional recognition, which do not meet the plain language requirements of this criterion. Rather, national and international recognition results through the awareness of the accolade in the eyes of the field nationally or internationally. This can occur through several means; for example, through media coverage. Additionally, unsupported conclusory letters from those in the petitioner's field are not sufficient evidence that a particular prize 9r award is nationally or internationally recognized. The evidence relating to the petitioner's first place finish at the 2005 World DanceSport Federation World Championship meets the plain language requirements of the regulation. Although this award is
  20. 20. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 10 of 16 A205 348 882 Page 8 not sufficient to meet the one-time achievement pursuant to the regulation at 8 C.F.R. § 204.5(h)(3) as counsel asserts, it is sufficient to meet the requirements of the lesser prizes or awards criterion. The director's concerns, including that the competition was age-specific, is appropriately considered within a final merits analysis. This award was the highest award available in the petitioner's field. in her age group and received media coverage from major media sources. Regarding the National Dancer of the Year Awards for 2005 and 2006, the petitioner failed to provide sufficient media coverage for either award to be considered a nationally or internationally recognized prize or award. The petitioner provided a letter from Svetlana Gozun, the President Member of the Moldova DanceSport Federation (MDSF). Ms. Gozun's letter states that the petitioner has sustained both international and national acclaim and that her achievements have been recognized in the field of DanceSport. Although Ms. Gozun's letter verified that the petitioner received the National Dancer of the Year awards for two consecutive years, merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Al~Vr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. I756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). Furthermore, as evidence of receiving these two awards, the petitioner only submitted photographs of the awards themselves in which the text is not in the English language. "Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English:' 8 C.F.R. § 103.2(b)(3). The letter from Ms. Gozun and other media coverage arc not primary evidence of the awards as required by the regulation at 8 C.F.R. § 103.2(b)(2). The petitioner provided her competition results listed on two websites, danceplaza.com and spaeker.de. However, the petitioner failed to provide evidence relating to either website being considered as a form of media that might support the position that coverage on either website equates to national or international recognition of the award. The record lacks evidence that danccplaza.com or spaeker.de are online versions of television or print media with a national reach. The petitioner has not presented any evidence to establish that the content from danceplaza.com or spaeker.de can be considered to receive national or international recognition. The petitioner bears the burden to establish eligibility, and in this instance she failed to provide any evidence regarding the reputation of the websites. National or international accessibility by itself is not a realistic indicator of a given website's reputation. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or internationally recognized in the field of endeavor and it is the petitioner's burden to establish that she meets every clement of this criterion. In this instance, there is no documentary evidence demonstrating that the petitioner's competition placements are recognized beyond the presenting organizations, danccplaza.com, or spaeker.de, and are therefore commensurate with nationally or internationally recognized prizes or awards for excellence in the field. The petitioner provided a letter from V. Romanescu, Editor of the !-,port Curier, a sports newspaper in Moldova. Mr. Romanescu indicated that the petitioner was the subject of several articles that appeared
  21. 21. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 11 of 16 A205 348 882 Page 9 in the newspaper. Mr. Romanescu also indicated that the Sport Curier '"is the biggest and oldest national sports newspaper in the Republic of Moldova:· His letter also asserts the publication has a monthly circulation of 85,000 within the country. The record is deficient of additional documentary evidence to corroborate Mr. Romanescu's assertions of the prominence of this publication. USCIS need not rely on the self-promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) a.fFd 317 F. App'x 680 (9th Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as major media). While the petitioner provided several articles from the Sport Curier, the petitioner provided no independent information relating to the circulation or the distribution data of the Sport Curier and thus, the petitioner may not rely on this publication to establish that this award is nationally or internationally recognized. A review of the remaining published material on record reveals that the publications primarily failed to name any specific prize or award. Additionally, the record failed to reflect that the published material that did mention specific awards has a national reach. As such, the petitioner has failed to establish that any of her accolades are nationally or internationally recognized prizes or awards. Although the petitioner provided evidence to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(iii) under the published material criterion, the evidence that sufficiently meets the plain language requirements of that criterion failed to identify any of the prizes or awards claimed under this criterion. Had the submitted evidence that satisfied the published material criterion also discussed the claimed prizes or awards, it may have been sufficient to satisfy the requirements of this criterion. While the petitioner demonstrated that the 2005 World DanceSport Federation World Championship was sufficient, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) also requires "prizes or awards" in the plural, which is consistent with the statutory requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. Consequently, the petitioner has not submitted evidence that meets the plain language requirements of this criterion. Published material ahow the alien in professional or major trade publications or other major media. relating to the alien's work in the .fieldfor which c/ass{fication is sought. Such evidence shall include the title, dale, and author ofthe material, and any necessary translation. The director determined that the petitioner met the plain language requirements of this criterion. The AAO affirms the director's tlworable determination as it relates to this criterion. Evidence c?l the alien's original scient{fic. scholarly. artistic. athletic. or business-related contribwions ofmajor siwzificcmce in the field. The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner must satisfy. The first is evidence of the petitioner's contributions (in the plural) in her field. These contributions must have already been realized rather than being potential, future contributions. The
  22. 22. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 12 of 16 A205 348 882 Page 10 petitioner must also demonstrate that her contributions arc original. The evidence must establish that the contributions arc scientific, scholarly, artistic, athletic, or business-related in nature. The final requirement is that the contributions rise to the level of major significance in the field as a whole, rather than to a project or to an organization. The phrase "major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). Contributions of major significance connotes that the petitioner's work has significantly impacted the field. The petitioner must submit evidence satisfying all of these elements to meet the plain language requirements of this criterion. The petitioner claims that ··her stylistic movements and unique technique'" satisfies the requirements of this criterion, and that her contributions arc evidenced by the expert letters submitted initially and in response to the director's RFE. The director determined that the petitioner failed to meet the requirements of this criterion. Regarding the letter from Gherman Mustuc, two-time World Professional Ten Dance Champion, Mr. Mustuc indicated that the petitioner's contribution to the sport is "through her unique weight transfer points in the execution of the Viennese cross and her transition from Ronda to Promenade. These contributions have resulted in a new understanding of balance in the female ballroom transition pieces that is now being taught by leading experts and emulated by top competitors." If the petitioner's original techniques were being adopted and taught by leading experts in the field, this has the potential to qualify under this criterion. Mr. Mustuc docs not, however, provide the names of any of the leading experts that he asserts have begun teaching the petitioner's techniques. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Additionally, the petitioner did not provide letters from any expert instructors who claim to have adopted her techniques and who claim that this new method of instruction has resulted in an impact within the petitioner's field. The letter from Bill Davies, winner of multiple North American and U.S. dancing championships, indicated that the petitioner's ·'unique innovations arc now being widely adopted by other competitors,'' and that he has recently "witnessed the implementation of these same innovations in the style of the advanced competitive dancers ... Their use is so widespread that they are now routinely taught to advanced dancers in both the U.S. and at international studios." Mr. Davies also did not provide any specifics relating to those who he alleged routinely teach the petitioner's techniques. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. While some of the remaining letters also reference the petitioner's unique techniques, none provide additional information relating to the impact on the petitioner's tield. The remaining letters also describe how the petitioner would be an asset to the sport and praise her skills and knowledge of the sport. Skills and knowledge in one's tield, however, are not necessarily indicative of original athletic contributions of major significance in the field. It is not enough to be skillful and knowledgeable and to
  23. 23. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 13 of 16 A205 348 882 Page 11 have others attest to those talents. An alien must have demonstrably impacted her field in order to meet this regulatory criterion. The reference letters submitted by the petitioner briefly discuss her physical skills, but they do not provide sufficiently specific examples of how the petitioner's work has significantly impacted the field at large or otherwise constitutes original contributions of major significance. The Board of Immigration Appeals (BIA) has stated that testimony should not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing Matter ofM-D-, 21l&N Dec. 1180 (BIA 1998); MallerofY-8-, 21 I&N Dec. 1136 (BIA 1998); Matter ofDass, 20 I&N Dec. 120 (BIA 1989); sec also Matter ofAcosta, 19 I&N Dec. 211, 218 (BIA 1985)). The Board clarified, however: "We not only encourage. but require the introduction of corroborative testimonial and documentary evidence, where available:· Matter of S-A-, 22 I&N Dec. at 1332. If testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter ofY-8-, 21 I&N Dec. 1136 (BIA 1998). Vague, solicited letters from local colleagues that do not specifically identify contributions or provide specific examples of how those contributions influenced the field are insufficient. Kazarian v. USCJS, 580 F.3d 1030, 1036 (91 h Cir. 2009) qff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's] contributions in the field" was insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. The opinions of experts in the field are not without weight and have been considered above. While such letters can provide important details about the petitioner's skills, they cannot form the cornerstone of a successful extraordinary ability claim. USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Mauer of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. /d. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact" but rather is admissible only if it will a'isist the trier of fact to understand the evidence or to determine a fact in issue). USCIS may even give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. /d. at 795; see also Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). Thus, the content of the writers' statements and how they became aware of the petitioner's 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 than preexisting, independent evidence of original contributions of major significance. Even if the petitioner's weight transfer technique is an original contribution impacting her field as a whole, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) also requires evidence of the alien's athletic "contributions" in the plural, which is consistent with the statutory requirement for extensive evidence. Section 203(b)(1)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R.
  24. 24. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 14 of 16 A205 34~ 882 Page 12 § 204.5(h)(3) arc worded in the plural. Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. Based on the above analysis, the petitioner has not submitted evidence that satisfies the requirements of this criterion. Evidence l~{the display ofthe alien's work in the field at artistic exhibitions or showcases. This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language requirements of this criterion require that the work in the field is directly attributable to the alien. Generally, 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts. This interpretation is longstanding and has been upheld by a federal district court in Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). The alien's work also must have been displayed at artistic exhibitions or showcases (in the plural). While neither the regulation nor existing precedent speak to what constitutes an exhibition or a showcase, Merriam-Webster's online dictionary defines exhibition as. "a public showing (as of works of art)."3 Merriam-Webster's online dictionary also defines showcase as, "a setting, occasion, or medium f()f exhibiting something or someone especially in an attractive or favorable aspect.'4 Dictionaries are not of themselves evidence, but they may be referred to as aids to the memory and understanding of the court. Nix v. Hedden, 149 U.S. 304, 306 (1893). Therefore, it is the petitioner's burden to demonstrate that the display of her work in the field claimed under this criterion occurred at artistic exhibitions or at artistic showcases. The petitioner must satisfy all of these elements to meet the plain language requirements of this criterion. The petitioner's field is in dancesport. Within the initial tiling statement. former counsel stated: "[The] Petitioner has sustained national and international acclaim as a competitive athlete and coach in the field of DanccSport (competitive ballroom dancing).'' The petitioner performed in an athletic display or coached those who did, rather than an artistic display. As the petitioner has not created tangible pieces of art that were on display at exhibitions or showcases, she has not submitted qualifying evidence that meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). Evidence that tile alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation. This criterion anticipates that a leading role should be apparent by its position in the overall organizational hierarchy and that it be accompanied by the role's matching duties. A critical role should be apparent from the petitioner's impact on the organization or the establishment's activities. The petitioner's performance in this role should establish whether the role was critical for organizations or 3 See http://www.mcrriam-wchstcr.com/dictionarv/cxhihition, accessed on November 20, 2012, a copy of which is incorporated into the record of proceeding. "See http:Uwww.mcrriam-wcbster.com/dictionarv/showcase, accessed on November 20, 2012, a copy of which is incorporated into the record of proceeding.
  25. 25. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 15 of 16 A205 348 882 Page 13 establishments as a whole. The petitioner must demonstrate that the organizations or establishments (in the plural) have a distinguished reputation. While neither the regulation nor precedent speak to what constitutes a distinguished reputation, Merriam-Webster's online dictionary defines distinguished as. "marked by eminence, distinction, or excellence."5 Dictionaries are not of themselves evidence, but they may be referred to as aids to the memory and understanding of the court. Nix v. Hedllen, 149 U.S. at 306. Therefore, it is the petitioner's burden to demonstrate that the organizations or establishments claimed under this criterion arc marked by eminence, distinction, excellence, or an equivalent reputation. The petitioner must submit evidence satisfying all of these elements to meet the plain language requirements of this criterion. Throughout the proceedings the petitioner claimed eligibility by performing a critical role for only one organization, DanceSport Club Codreanca. The director determined that the petitioner failed to meet the requirement.;; of this criterion. The petitioner provided a letter from Petru Gozun, founder of DanceSport Club Codreanca in which Mr. Gozun indicated that the petitioner was an instructor at the club. The AAO will not infer the nature of the petitioner's role solely from the job title. The letter falls short of specifying how the petitioner contributed to the organization in a way that is significant to the organization's outcome or what role she played in the organization's activities. As such, the petitioner cannot rely upon the DanceSport Club Codreanca to qualify under this criterion based on the evidence on record. Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) also requires that the petitioner have performed in a leading or critical role for "organizations or establishments" in the plural, which is consistent with the statutory requirement for extensive evidence. Section 203(b){l){A){i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. Consequently, the petitioner has not submitted evidence that meets the plain language requirements of this criterion. D. Summary The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. III. CONCLUSION The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien has achieved sustained national or international acclaim and is one of the small percentage who have risen to the very top of the field of endeavor. 5 See http://www.mcrriam-wehster.mm/dil:tionary/distinguishcd, accessed on November 20, 2012, a copy of which is incorporated into the record of proceeding.
  26. 26. Case 1:13-cv-00223-JEB Document 1-4 Filed 02/21/13 Page 16 of 16 A205 348 882 Page 14 Had the petitioner 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 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" 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." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the evidence is not indicative of a level of expertise consistent with the small percentage at the very top of the field or sustained national or international acclaim, the AAO need not explain that conclusion in a final merits determination. 6 Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. /d. at 1122. The petitioner has not established eligibility pursuant to section 203(b)(1 )(A) of the Act and the petition may not be approved. The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (citing Matter of Brantigan, 11 l&N Dec. 493 (BIA 1966)). Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed. fl The AAO maintains de novo review of all questions of fact and law. See So/cane v. DO.!, 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 office that 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; section 204(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(f)(3)(iii) (2003); Matter ofAurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).
  27. 27. 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SVETLANA VISINSCAIA, Plaintiff, v. Civil Action No. 13-223 (JEB) RAND BEERS, et al., Defendants. MEMORANDUM OPINION This case calls on the Court to decide whether Plaintiff Svetlana Visinscaia is a great ballroom dancer or merely a very good one. Visinscaia, a native and citizen of Moldova, was admitted to the United States on August 5, 2011, on an F-1 visa to attend community college in Virginia. Toward the end of her first year in this country, she filed a petition asking the United States Customs and Immigration Service to reclassify her as an “alien of extraordinary ability,” a status that would allow her to remain here as a competitive dancer and coach. As evidence of her ability and renown as a dancer, Visinscaia submitted a number of published reports about her performances, as well as awards and letters from colleagues and students attesting to her leading role in the international “Dance Sport” community. USCIS nonetheless denied her application on the ground that she did not satisfy the statutory requirements for an extraordinary-ability visa. After exhausting her administrative options, Visinscaia filed suit in this Court under the Administrative Procedure Act, alleging that the agency’s denial was arbitrary and capricious and an abuse of discretion. The parties now cross-move for summary judgment. Although Visinscaia has produced impressive evidence of her successful career as a dancer and dance instructor, the Court cannot overturn the agency’s reasoned judgment. VISINSCAIA v. NAPOLITANO et al Doc. 18 Dockets.Justia.com
  28. 28. 2 I. Background Visinscaia was born in Moldova. See Administrative Record at 519 (Plaintiff’s Passport). Showing promise as a dancer from a young age, she began to compete – and do very well – in competitions throughout her country and in Eastern Europe generally. See AR 600-09 (Table Documenting Visinscaia’s Finishes at International Competitions Beginning at Age 11). By 2005, the 15-year old had achieved a world-class ranking in the field of ballroom dance, and in that year she won her first – and, to this point, only – world championship in the World Dance Sport Federation Junior II Ten category. See AR 550-52 (Certificate Verifying 2005 Junior Championship). Having reached the end of the road on the juniors’ circuit, Visinscaia continued to compete but also began serving as an instructor at a local dance academy. See AR 51 (Formal Complaint in Response to USCIS Request for Evidence). In 2011, she came to the United States to study in Sterling, Virginia. See AR 470 (Plaintiff’s I-140 Petition). Visinscaia began her quest for a new, long-term visa in May 2012, when she filed an I- 140 petition for classification as an alien of extraordinary ability in the field of ballroom dance. See id. at 469. That Visinscaia would seek such status is unsurprising: federal law assigns applicants of extraordinary ability the highest priority among employment-based visa applicants, see 8 U.S.C. § 1153(b)(1)(A), and such aliens need not present evidence of a job offer from an American employer before they are granted a visa. Kazarian v. USCIS, 596 F.3d 1115, 1120 (9th Cir. 2010) (citing 8 C.F.R. § 204.5(h)(5)). In her initial filing and in response to a request for further evidence from USCIS, Visinscaia produced documents purporting to show that she had achieved sustained success in her field, including national and international awards, publications chronicling her achievements,
  29. 29. 3 letters of support from her students and coaches, and more. In light of the evidence, she argued, she qualified as an immigrant of extraordinary ability and deserved a visa. See Compl., ¶ 34. After an impressively thorough review of Visinscaia’s evidence, USCIS concluded that, despite her various awards, her achievements did not rise to the level necessary to obtain an extraordinary-ability visa. See AR 438 (USCIS Denial of Plaintiff’s I-140 Application). As a result, it denied her application, and the agency’s Administrative Appeals Office affirmed that decision on de novo review. See Compl., Exh. 4 (AAO Appeal Denial) at 14. In bringing suit, Visinscaia contends that the agency’s final decision violates applicable law, and she asks the Court to vacate that decision and to direct the agency to declare her an alien of extraordinary ability. See Compl., ¶¶ 34-36. The parties have filed cross-motions for summary judgment, to which the Court now turns. II. Legal Standard Plaintiff relies on the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge USCIS’s denial of her visa application. Summary judgment is one mechanism for adjudicating claims under the APA. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010). Due to the limited role federal courts play in reviewing administrative decisions, however, the typical Federal Rule 56 summary-judgment standard does not apply in such cases. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7 (D.D.C. 2005)). Instead, “the function of the district court is to determine whether or not . . . the evidence in the administrative record permitted the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and otherwise consistent with
  30. 30. 4 the APA standard of review. See Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing Richards v. INS, 554 F. 2d 1173, 1177 (D.C. Cir. 1977)). The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review – which appropriately encourages courts to defer to the agency’s expertise, see Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) – an agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotation marks omitted). In other words, courts “have held it an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” Kazarian, 596 F.3d at 1118. It is not enough, then, that the court would have come to a different conclusion from the agency. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). The reviewing court “is not to substitute its judgment for that of the agency,” id., nor to “disturb the decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational connection between the facts found and the choice made.” Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A decision that is not fully explained, moreover, may be upheld “if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
  31. 31. 5 III. Analysis USCIS does not disagree that Visinscaia has been a successful competitive dancer for more than a decade. See, e.g., Def. Mot. at 13 (noting that AAO concluded that at least one of Visinscaia’s dance awards was nationally recognized). Merely achieving success, however, is insufficient for someone to be granted extraordinary-ability status. Instead, to determine whether Visinscaia qualifies, the agency – and this Court – must interpret and apply § 203(b)(1)(A) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1153. Although the INA does not define “extraordinary ability” beyond the general recognition that abilities in the “sciences, arts, education, business, or athletics” may qualify, see 8 U.S.C. § 1153(b)(1)(A)(i), the statute does provide some oblique guidance. “Sustained national or international acclaim” is a hallmark of extraordinary ability, for example, as are achievements that “have been recognized in the field through extensive documentation.” Id. Federal regulations explain, further, that “extraordinary ability” can be defined as “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.” 8 C.F.R. § 204.5(h)(2). The “extraordinary ability” designation is thus “extremely restrictive” by design. See Lee v. Ziglar, 237 F. Supp. 2d 914, 919 (N.D. Ill. 2002); see also id. at 915, 918 (finding that “arguably one of the most famous baseball players in Korean history” did not qualify for visa as baseball coach for Chicago White Sox). Still, evidence of extraordinary ability is not impossible to come by. See, e.g., Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995) (finding that agency improperly discounted evidence for NHL hockey player who had won Stanley Cup three times, won “most underrated defenseman,” and been paid more than average NHL player); Matter of Price, 20 I. & N. Dec. 953, 955-56 (BIA 1994) (granting visa petition of professional golfer who
  32. 32. 6 won 1983 World Series of Golf and 1991 Canadian Open, ranked 10th in 1989 PGA Tour, collected $714,389 in 1991, and received widespread major media coverage). To meet this strict definition, an alien must submit evidence that she has sustained national or international acclaim and that her achievements have been recognized in the field of expertise. See 8 C.F.R. § 204.5(h)(3). That evidence must include documentation of either (1) “a one-time achievement (that is, a major, international [sic] recognized award),” 8 C.F.R. § 204.5(h)(3); or (2) at least three of the ten types of lesser achievements enumerated in the regulations. See id. The Ninth Circuit – the only federal court of appeals to address the substance of an “extraordinary-ability” challenge – has held that the regulations set out a two- step test: If the alien satisfies her initial evidentiary burden – that is, if she proves that she has met either of the requirements of § 204.5(h)(3) – USCIS must then decide, in a “final merits determination” and weighing the documentation offered, whether the evidence demonstrates extraordinary ability. See Kazarian, 596 F.3d at 1120-21. In practice, USCIS has endorsed that holding. See USCIS Adjudicator’s Field Manual § 22.2(i)(i)(A); Noroozi v. Napolitano, 905 F. Supp. 2d 535, 539 (S.D.N.Y. 2012) (noting that USCIS follows the Kazarian two-step method). Plaintiff here argues that USCIS erred in three ways. First, she claims that the agency’s finding that she lacked a qualifying “one-time” achievement was arbitrary and capricious. See Compl., ¶ 33; Pl. Mot. at 6-10. Second, she contends that it was error for USCIS to conclude that she had not satisfied at least three of the ten alternative evidentiary criteria. See Compl., ¶ 33; Pl. Mot. at 10-25. Third, Visinscaia maintains that USCIS inexplicably departed from established policies by failing to apply the Kazarian two-step method, which she argues the agency has adopted as formal policy. See Compl., ¶ 32; Pl. Opp. and Reply at 4.
  33. 33. 7 As to the last point, the agency first responds that it is not bound by Kazarian, a Ninth Circuit case of no precedential value in this Circuit. See Def. Mot. at 17-19. The Court need not decide whether to follow Kazarian, however, because it agrees with USCIS that the agency appropriately applied the standard articulated in that opinion. Indeed, the initial adjudicator described Kazarian and its substantive holding several times in the course of his administrative review, and at every turn he explained how his analysis fit into that framework. More specifically, he first determined whether Visinscaia had submitted evidence to show that she had received a major, one-time award or, alternatively, that she satisfied three of the ten other criteria. See AR 3-4 (USCIS Request for Evidence); USCIS I-140 Denial at 431. Only then, he observed, could he determine whether her documentation demonstrated that she was an alien of extraordinary ability. See Request for Evidence at 4; USCIS I-140 Denial at 431. Because the agency concluded that Plaintiff had not succeeded on the first Kazarian step, it had no need to analyze the second. The Administrative Appeals Office repeated, adopted, and expanded upon the initial adjudicator’s analysis. See AAO Appeal Denial at 4-16. Indeed, Visinscaia admits as much in her Cross-Motion, noting that the AAO said that “it [did] not need to explain its conclusion relating to the final merits determination.” Pl. Mot. at 26 (emphasis added). The Court will thus confine its review to Visinscaia’s first two challenges. A. One-Time Achievement In extraordinary-ability cases, the burden is on the petitioner to provide sufficient evidence of, among other things, a “one-time achievement (that is, a major, international [sic] recognized award).” 8 C.F.R. § 204.5(h)(3). Plaintiff claims that her first-place finish at the 2005 World DanceSport Federation Championship in the Junior II Ten Dance category constitutes such a one-time achievement that can satisfy her burden at this stage. See Compl., ¶
  34. 34. 8 19; Pl. Mot. at 6. In its January 2013 decision, however, the AAO concluded that the 2005 Championship did not qualify as a major achievement within the meaning of the agency’s regulations. The AAO disagreed with Visinscaia’s argument, in part because its reading of the legislative history behind § 204 of the INA – which mentioned the Nobel Prize as an example of a major, one-time achievement, see H.R. Rep. No. 101-723, part 1, at 59 (Sept. 19, 1990) – suggested that “the award must be internationally recognized in the alien’s field as one of the top awards in that field.” AAO Appeal Denial at 9. Because (1) Visinscaia failed to produce evidence that her award was “reported in top international media” and (2) “the competition was limited to those younger than 15 years of age and was not open to the petitioner’s entire field,” the AAO determined that the award was neither internationally recognized nor one of the top awards in the field. In those circumstances, it could not qualify as a major international award for the purpose of the § 204 inquiry. Id. at 8-9. In her Motion for Summary Judgment, Visinscaia takes issue with that conclusion, complaining that the agency improperly weighed the facts in the record. See Pl. Mot. at 11-13. In particular, she contends that the agency should have concluded that her 2005 Championship was a major prize because it was awarded by the World Dance Sport Federation, which the International Olympic Committee recognizes as the top Dance Sport organization. See id. In Plaintiff’s view, the fact that the award-bestowing entity is a prominent, international organization is enough to render any of its awards “major” within the meaning of the INA and the associated regulations. The agency, however, determined that the prestige of the granting organization alone was not sufficient to outweigh other factors, including the lack of international media coverage and the age-restricted nature of the award. See AAO Appeal Denial at 7-8.

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