Vagueness Rules the Day in this AAO Sustained Appeal
by Joseph P. Whalen (July 5, 2014)
I was aghast when I encountered the below linked AAO Sustained
Appeal Decision just moments after posting an article about the AAO push
for “specificity” in initial decisions. At first blush, it would appear that AAO
did not include itself in that push except when shredding evidence in order
to fully support the denial of a benefit. After giving myself as little time to
“cool off” and in the desire to give, and in this article I am giving, the
“benefit of the doubt” to AAO on this issue, I am left with three possible
(perhaps even “plausible”) explanations for this disparate treatment.
First, AAO may be contemplating an editorial revision for
submission to the BIA as a new precedent decision; (I hope) we all know
that this category (EB-1 extraordinary ability) could most certainly use a
new one. Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm’r 1994), is
not a very good precedent because the case was too darn easy to approve.
Its usefulness is on par with Congress’ single example of the Nobel Prize. As
I have said before, a single example that is so incredibly unique is of
virtually no value. With my background as, and education to become, an
archaeologist, my thought processes are more attuned to the mechanics of
“generalizing from the specific” because it was a required skill in that
occupation. Experienced and contemplative jurists are able to perform that
task as well when they formulate a “test” of one sort or another. All I can do
is hope for the best. One helpful item contained in Price is a quote from
the supplementary information published in a Federal Register Notice
when the regulatory rule governing this adjudication was being
promulgated. Page 955 of the decision in Matter of Price gives us the
following notable quote.
“Performance at that [major league] level may frequently help to establish
that the athlete meets several of the listed criteria. However, section
203(b)(1)(A)(i) of the Act, as amended by section 121(a) of Public Law 101649, states that the alien's extraordinary ability must be "demonstrated by
sustained national or international acclaim." Not all athletes, particularly
those new to major league competition, would be able to meet this
standard. A blanket rule for all major league athletes would contravene
Congress' intent to reserve this category to "that small percentage of
individuals who have risen to the very top of their field of endeavor."
56 Fed. Reg. 60,897, 60,899 (1991)”
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The part I find most helpful is: “A blanket rule for all major league
athletes would contravene Congress' intent to reserve this category to "that
small percentage…””. I could not agree more with that sentiment. I
included the same sentiment in my Amicus Brief to AAO on the proper
application of the “Final Merits Determination” (I call it a qualitative
analysis and evaluation of the evidence) or what is increasingly being
known as the second part of the Kazarian analysis. In a discussion on
improving the guidance to applicants and/or petitioners regarding
“comparable evidence” but drawn from NYSDOT1 , I stated, in pertinent
part:
“….. It is the position of USCIS to grant national interest waivers on a case by
case basis as demonstrated by the evidence in the individual record,
rather than to establish blanket waivers for entire fields of specialization. The
same rationale shall be applied to the determination of eligibility for visa
classification as an alien of extraordinary ability.” At p. 6 of Amicus Brief. 2
It seems clear to me that certain categories of immigration benefits
are simply not suited to blanket or “programmatic” treatment. That is not
to say that there aren’t any benefits under the immigration laws that are
suitably treated in a blanket or programmatic manner. There most certainly
are such benefits3 but this just doesn’t happen to be one of them.
A second potential “benefit of the doubt” type of explanation for the
disparate treatment between sustained and dismissed appeals might be
privacy concerns. If too much information, even with redaction, might still
leave enough clues for the apparently well know beneficiary or selfpetitioner to be identified then I can see holding back but not this much.
Without the individual’s consent, a non-precedential AAO decision
rightfully remains a very private matter. In order to release more details
(even while still withholding the person’s name—as in Matter of XXX etc…)
the decision would most likely need to be heavily revised and properly
edited and reviewed multiple times by multiple sets of eyes before
publishing it as a new official Precedent Decision.
A third potential “benefit of the doubt” type of explanation for the
disparate treatment between sustained and dismissed appeals might be
fraud prevention. AAO, indeed USCIS as a whole, would not want to
1
Matter of New York Department of Transportation, 22 I&N Dec. 215 (AAO 1998)
SEE: http://www.slideshare.net/BigJoe5/amicus -brief-to-uscis-on-kazarian-final-merits-determination-aug-202011-jpw-redacted Posted as by Anonymous Author on uscis.gov.
3
SEE: http://www.slideshare.net/BigJoe5/ina-programmatic-approaches-v-individualized-case-by-case-analysis-82811-jpw
2
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inadvertently or prematurely4 provide ready-made blurbs to be stolen from
the written decision that would make it easier for some unscrupulous
person to copy and re-use what would be viewed as “successful” language,
situations, or scenarios to be emulated at any and all costs. Nearly any
benefit request can be bolstered with fake evidence (that is NO “tradesecret”). The plagiarism of select passages from a well written and highly
detailed analysis that actually supported approval would be a hot
commodity. However, in actuality it would be a big waste of time to do it.
This is so because even before it is tried, the adjudicators would be looking
for it. Only the stupidest and MOST desperate of individuals would even try
it and they would get caught right away and potentially prosecuted for
fraud as an example to others and at the very least would then become
inadmissible and highly unlikely to be granted any waiver. That said, there
are plenty of stupid and desperate individuals who would try it anyway.
A final alternative could be something that I don’t want to believe.
Specifically, that AAO is simply choosing to not be helpful. I don’t believe
that that is the case but felt that I had to “throw it out there” just because it
is within the realm of possibility. I say only a “possibility” because of the
great strides I am seeing and cannot comprehend why progress would be
halted or why it would be withdrawn at this stage without a darn good
reason. I am hoping that some combination of scenarios one, two, and
three, is at the heart of the matter.
What follows is the bulk of the AAO sustained appeal referenced
herein. I have maintained the original pagination for the most part (I
dropped the cover page) and inserted lines to mark the start and end of
each page as in the posted decision5 with a few comments inserted between
them. I have also added highlighting of specific passages.
NON-PRECEDENT DECISION
Page 2
DISCUSS ION: The Director, Texas Service Center, denied the emp loyment-based immigrant visa petition, which
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 203(b )(l)(A) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not
established the sustained national or international acclaim necessary to qualify for classification as an alien of
extraordinary ability.
4
By prematurely releasing such informat ion, I mean that the agency needs to train the staff involved in these cases
by preparing training materials concurrently with the precedent revision and then immed iately distributing the
published decision to those adjudicators with deliberate haste and direct orders to read it and discuss it.
5
I did fix a couple of “orphaned” passages just to “clean it up” for this article and I find it undesirable and a
nuisance to interrupt a train of thought needlessly.
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Congress set a very high benchmark for aliens of extrao rdinary 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 ach ievement 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 qualify ing evidence under at least three o f the ten regulatory
categories of evidence to establish the basic eligib ility requirements.
On appeal, the petitioner submits a brief. For the reasons discussed below, upon review of the entire record, the
petitioner has established eligibility for the exclusive classificat ion sought.
I. LAW
Section 203(b) of the Act states, in pertinent part, that:
(1) Prio rity workers. -- Visas shall first be made availab le ... to qualified immig rants who are aliens
described in any of the follo wing subparagraphs (A) through (C):
(A) Aliens with ext raordinary ab ility.-- An alien is described in this subparagraph if-(i) the alien has extraord inary 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 ext raordinary
ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively the
United States.
So far, I have NO CLUE as to whether this person’s “extraordinary ability”
is in the sciences, arts, education, business, or athletics. I dare say, neither
does anyone else. Let’s look for any available context clues for a hint.
NON-PRECEDENT DECISION
Page 3
U.S. Cit izenship and Immigrat ion Services (USCIS) and legacy Immigration and Naturalizat ion Service (INS) have
consistently recognized that Congress intended to set a very high standard for indiv iduals seeking immigrant v isas as
aliens of extraord inary ability. See H.R. 723 10151 Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov.
29, 1991). The term "ext raordinary ability" refers only to those individuals in that small percentage who have risen
to the very top of the field of endeavor. Id.; 8 C.F.R. § 204.5(h)(2).
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained acclaim and the
recognition of his achievements in the field. Such acclaim must be established either through evidence of a one -time
achievement (that is, a major, international recognized award) or through the submission of qualifying evidence
under at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i) -(x).
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition filed under
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). A lthough the court upheld the AAO's decision
to deny the petition, the court took issue with the AAO's evaluatio n of evidence submitted to meet a given
evidentiary criterion.[FN1] With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that
while USCIS may have raised legitimate concerns about the significance of the evidence submitted to meet those
two criteria, those concerns should have been raised in a subsequent "final merits determination." Id. at 1121-22.
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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 st ated that "the proper procedure is to
count the types of evidence provided (which the AAO d id)," and if the petitioner failed to submit sufficient
evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of th ree types
of evidence (as the AAO concluded)." Id. at 1122 (cit ing to 8 C.F.R. § 204.5(h)(3)).
Thus, Kazarian sets forth a two-part approach where the evidence is first counted. If the petitioner satisfies at least
three criteria, then USCIS will consider the evidence in the context of a final merits determination.
II. ANALYS IS
A. Ev identiary Criteria
The petitioner seeks classification as an "alien of extraordinary ability." The d irector concluded that the petitioner
meets the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(v ii). Upon review o f the entire record, we finds [sic] that the
petitioner's submitted evidence also meets an additional two of the regulatory categories of evidence at 8 C.F.R. §
204.5(h )(3)(iii) and and [sic] (viii). Accordingly, the petitioner has established the minimu m eligibility requirements
necessary to qualify as an alien of ext raordinary ab ility. 8 C.F.R. § 204.5(h)(3).
______________________
[FN1]
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h )(3)(iv) and 8 C.F.R. § 204.5(h)(3)(v i).
There seems to be a little bit of “revisionist history and selective amnesia”
in AAO’s now standard Kazarian blurb where they state:
“…. "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three
types of evidence (as the AAO concluded)."
AAO conveniently does NOT include the fact that they found that Dr.
Kazarian met NONE of the criteria when the Court found he had met two.
Specifically, Senior Circuit Judge Dorothy W. Nelson wrote for the panel:
“The AAO found that Kazarian did not meet any of the regulatory criteria. Only four of the ten are at issue
in this appeal. We find that the AAO erred in its consideration of two of these issues.”
Moving right along, the use of “If…, then…” statements, is more useful than
reusing the passage from the actual Kazarian decision that had been used
previously. Judge Nelson left out the word “then” in writing what simply
must be read as an “if…then…” statement in order to make sense. Judge
Nelson actually wrote:
“If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates
both a "level of expertise indicat ing that the individual is one of that small percentage who have risen to the
very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or
international acclaim and that his or her achievements have been recognized in the field of expert ise." 8
C.F.R. § 204.5(h)(3). On ly aliens whose achievements have garnered "sustained national or international
acclaim" are elig ible for an "extraord inary ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i).” At 1120
It seems clear to me that it is more naturally read as:
“If a petitioner has submitted the requisite evidence, [then] USCIS determines whether the evidence
demonstrates…”
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As for the instant case under discussion, the petitioner was found to meet
three criteria, specifically they are:
(iii) Published material about the alien in professional or major trade publications or other major media,
relating to the alien's work in the field for which classification is sought. Such evidence shall include the
title, date, and author of the material, and any necessary translation;
*
*
*
*
*
(vii) Ev idence of the display of the alien's work in the field at art istic exh ibitions or showcases;
(viii) Ev idence that the alien has performed in a leading or crit ical role for organizations or establishments
that have a distinguished reputation;
The current case under discussion does not even specifically list the cited
criteria let alone discuss what was submitted to meet them. At this point, I
still have no clue even in what area this “extraordinary ability” resides.
NON-PRECEDENT DECISION
Page 4
B. Final Merits Determination
We will next conduct a final merits determination that considers all of the evidence in the context of whether or not
the petitioner has demonstrated: (1) a "level of expertise ind icating that the individual is one of that small percentage
who have risen to the very top of the[ir] field of endeavor," 8 C. F.R. § 204.5(h)(2); and (2) "that the alien has
sustained national or international acclaim and that his or her achievements have been recognized in the field of
expertise." Section 203(b)(1)(A) of the Act; 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.
In the present matter, consistent with Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Co mm'r 1994), the petitioner
has submitted extensive documentation of his achievements and has demonstrated a "career of acclaimed work in
the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). The submitted evidence is
sufficient to demonstrate the petitioner's sustained acclaim and that his achievements have been recognized in the
field of expertise.
The petitioner has worked in his field for appro ximately forty years and has d esigned and managed projects all over
the world, including [REDA CTED] in France, [REDA CTED] in Italy, [REDA CTED] in Germany, [REDACTED]
in Brazil and the [REDA CTED] in Turkey. The petit ioner submitted letters fro m employers wh ich demonstrated the
leading and crit ical role he performed for them. In addit ion, the petitioner submitted evidence of the display of his
work at exh ibitions. He also submitted copies of articles fro m a variety of sources in a number of countries. While
not all of the art icles are about the petitioner or co mply with the regulatory requirement that the petitioner include
the publication, date and author, there is sufficient evidence that meets the requirements of 8 C.F.R. § 204.5(h)(3)
(iii). The remaining articles, including those he has been invited to write fo r an international trade journal discussing
his projects, are relevant to the significance of the projects on which he has worked and his role fo r those projects.
He currently o wns his own business in Flo rida and is designing an d managing projects in both the United States and
abroad, including [REDACTED], in Ro me. Thus, in light of the above and other evidence of record consistent with
elig ibility, the petitioner's achievements are co mmensurate with sustained national or international acclaim at the
very top of his field.
III. CONCLUS ION
While not all of the petitioner's evidence carries the weight imputed to it by the petitioner, the evidence of record [is]
[sic] sufficient to establish that he has demonstrated his eligib ility for the classification sought. Specifically, upon
careful review of the record, it is concluded that the petitioner has demonstrated by a preponderance of the evidence
that he is within the small percentage of individuals who have risen to the very top of his field. The ev idence
I feel the need to ask “What evidence?”
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NON-PRECEDENT DECISION
Page 5
submitted establishes that the petitioner has sustained national or international acclaim, h is achievements have been
recognized in his field, he seeks to continue working in the same field and his entry will substantially benefit
prospectively the United States.
The burden of proof in visa petition proceedings remains entirely with th e petitioner. Section 291 of the Act, 8
U.S.C. § 1361. Here, the petitioner has sustained that burden.
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is
approved.
After having gotten through the whole thing, I only know that the
self-petitioner:
 has “designed and managed projects all over the world”, and
 that “he” had a “leading and critical role” for past employers,
and
 that there was “evidence of the display of his work at
exhibitions”.
I do not know:
 what kinds of projects or what works were;
 displayed at exhibitions;
 the nature of his role for past employers,
 which of the five contexts from the statute apply to his
occupation, nor what the occupation, in fact, is.
AAO has presented vague conclusory assertions without citing to any
specific piece of evidence. There was, once again, no particularized analysis
made, or citation to the evidence presented.
The AAO Sustained Appeal is found at: JUN182014_01B2203.pdf
***OR***
http://www.uscis.gov/sites/default/files/err/B2%20%20Aliens%20with%20
Extraordinary%20Ability/Decisions_Issued_in_2014/JUN182014_01B2203
.pdf
That’s my two-cents, for now!
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About the Author
Joseph P. Whalen, Independent EB-5 Consultant, Advocate,
Trainer & Advisor
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Phone: (716) 604-4233 or (716) 768-6506
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