当前在线人数250
移民专栏首页 -> 刘宗坤律师专栏 -> 文章
本所再赢EB-1A上诉案:AAO用两步分析法推翻移民局决定
作者:刘宗坤律师     发文时间: 2010年09月08日 03:21:08
Liu & Associates Wins EB-1A Appeal: AAO Applies Two-Part Kazarian Analysis

刘宗坤律师按:这是2010年本所赢得的第二个EB-1A上诉案。据我们所知,这也是行政上诉办公室(AAO)首次使用Kazarian的两步分析法批准的EB-1A上诉案。近来,许多读者十分关注Kazarian及移民局根据Kazarian拟定的临时备忘录对EB-1A审理的影响。AAO的这一判决印证了我们的看法:Kazarian及移民局根据Kazarian拟定的临时备忘录并没有改变EB-1A的审理标准,只是只是改变了审理方法。具体负责此案的Christina Le律师在本文中对AAO的这一判决做出详细分析。

Christina Le, Associate Attorney at Liu & Associates, PLLC

On August 24, 2010, the Administrative Appeals Office (AAO) sustained an
appeal filed by Liu & Associates and approved the EB-1A I-140 petition that
was originally denied by the USCIS Texas Service Center. Notably, this is
the first sustained appeal that we are aware of where the AAO applied the
two-step Kazarian analysis in making its decisions. We will address this in
more detail below.

The EB-1A Petition and Decision

As background, the EB-1A I-140 petition was originally filed with USCIS in
August 2009. The petitioner/beneficiary was a pharmacology researcher
seeking classification of immigrant worker as an alien of extraordinary
ability under INA §203(b)(1)(A). To support the petition, the petitioner/
beneficiary submitted documentary evidence demonstrating that he met at
least three criteria as required by 8 C.F.R. § 204.5(h)(3). The EB-1A I-
140 petition was filed with Form I-907 Request for Premium Processing
Service. The USCIS Texas Service Center Premium Processing Unit issued a
Request for Evidence within 15 days of the filing, seeking additional
information about all three criteria and referenced information not claimed
nor mentioned in the original petition. It was clear that the USCIS had
issued a boilerplate RFE and did not closely review the evidence submitted.
(From our experience, such RFEs have been the trend for Premium Processing
EB-1As). A timely response was submitted with additional evidence to
support all three criteria: 1) participation as a judge of the work of
others; 2) original contributions of major significance; and 3) authorship
of scholarly publications.

In October 2009, USCIS denied the EB-1A I-140 petition, finding that the
petitioner/beneficiary met the two criteria of participation as a judge of
the work others (well established by petitioner/beneficiary’s service as an
editorial board member of an international journal and frequent requests by
highly-regarded international journals to serve as a peer-reviewer) and
authorship of scholarly publications (supported by at least 19 peer-reviewed
publications and more than 200 citations), but that the petitioner/
beneficiary failed to establish the third criterion of original
contributions of major significance. In its decision, USCIS wrote only
three general sentences to dismiss the petitioner/beneficiary’s claim of
original contributions of major significance, largely ignoring detailed
facts in letters of recommendation from independent experts and the
objective record of evidence, including hundreds of independent citations to
petitioner/beneficiary’s work. With no legal reasoning or analysis of the
case in its decision, USCIS denied the EB-1A petition by concluding the
petitioner/beneficiary failed to establish sustained national or
international acclaim and that he was among the small percentage of top
researchers in his field.

The Appeal

After reviewing the USCIS decision, we found that it contained both mistakes
of law and mistakes of fact, and advised petitioner/beneficiary to file an
appeal to the AAO. On appeal, we pointed out that the USCIS decision failed
to consider the independent advisory opinions from international
recommenders that clearly explained how the petitioner/beneficiary’s
original scientific contributions have directly influenced not only the
field in general, but also the recommenders in particular. A number of
recommenders clearly stated in detail that they have cited or used the
petitioner/beneficiary’s work or known of other research groups that have
used the petitioner/beneficiary’s work in their own research. This served
as direct evidence of the petitioner/beneficiary’s international influence
and original contributions of major significance, which the USCIS had
disregarded. Likewise, we pointed out that the experts’ statements were
supported by tremendous material facts and evidence in the record, such as a
high citation rate from independent researchers worldwide. Consistent with
prior AAO decisions, a good number of independent citations is probative
evidence of original contributions of major significance. Finally, we
pointed out that establishing sustained national or international acclaim
and status as a top researcher in the field should be based on the overall
record and not one criterion, which is consistent with the approach laid out
in Kazarian.

Original Contributions of Major Significance

Oftentimes for research scientists, one of the most difficult criteria to
establish is “original contributions of major significance. It is not
enough that research be original because all scientific research is expected
to be original in order to be published. Rather, the petitioner/
beneficiary must show that the original research is of “major significance,
” having already impacted or influenced the field of research. In our
decision, the AAO reiterated its line of reasoning that letters from
independent experts evaluating the petitioner/beneficiary’s original
contributions of major significance in detail and a record of highly cited
work are important evidence to support this criterion. In particular, as
discussed in the AAO decision, great emphasis is placed on letters of
recommendation from independent experts that contain specific details and
technical facts that are corroborated by objective, substantive evidence. A
letter that generally states a researcher is extraordinary without the
technical facts to back the claim is not helpful. Likewise, a letter that
exaggerates the significance of a researcher’s contributions will not be
helpful if objective evidence (publications, high citations, media reports,
etc.) is not available to support the statements. As we have explained to
many clients, the USCIS gives most evidentiary weight to letters of
recommendation from independent experts who have cited, used, or been
influenced by the petitioner/beneficiary’s research findings. These
recommenders can clearly explain in their letters the major significance of
an original contribution from a personal point of view. Such letters are
invaluable for EB-1A petitions and were key to the successful appeal and
approval of this particular EB-1A petition.

In our case, the AAO found the record contained evidence of “letters from
various research scientists stating that the petitioner’s original
scientific contributions are of major significance in the field and
providing specific examples of those contributions and how they have already
significantly contributed in the field.” After highlighting several of
the letters of recommendation, the AAO found that “the preceding experts
have not merely reiterated the regulatory language of this criterion, they
have clearly described how the petitioner’s scientific contributions are
original and of major significance in the field. Several of the experts
have explained how they currently use the petitioner’s findings in their
own work.” The AAO further found the statements in the letters were well
supported by independent citations that are “solid evidence that other
researchers have been influenced by [the petitioner’s] work.” Based on
these findings, the AAO held that the petitioner/beneficiary meets the
criterion of original contributions of major significance.

Sustained National or International Acclaim and Small Percentage of Top
Researchers

After finding that the petitioner/beneficiary now has established three
criteria in support of his EB-1A petition, the AAO went on to conduct a “
final merits determination” to consider all the evidence in the context of
whether the petitioner/beneficiary 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 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.” Both factors
are required under the regulations for EB-1A classification.

In its final merits determination, the AAO found that the petitioner/
beneficiary has demonstrated a “career of acclaimed work in the field.”
The AAO considered the petitioner/beneficiary’s 19 published articles that
are well cited more than 200 times. Furthermore, the AAO determined that
the citation record is also consistent with original contributions of major
significance as discussed in the letters of recommendation detailing the
influence of the petitioner/beneficiary’s contributions, which together
supports national or international acclaim. Together with the petitioner/
beneficiary’s service as a peer-reviewer and judge of the work of others,
the AAO found that “the petitioner’s achievements are commensurate with
sustained national or international acclaim at the very top of his field.”
Accordingly, the AAO sustained our appeal and approved the case.

Two-Step Kazarian Analysis

In its decisions, the AAO employed a new two-part approach following the U.S
. Court of Appeals for the Ninth Circuit’s ruling in Kazarian v. USCIS. In
that case, the Ninth Circuit found that the AAO’s traditional one-step
approach, where each criterion was analyzed individually to evaluate whether
it supported EB-1A, imposed a unilateral evidentiary requirement beyond the
scope of the regulations. Following the approach outlined in Kazarian, the
AAO now adopts a two-part approach: 1) The type of evidence is counted
first, and if evidence for at least 3 criteria are submitted, then 2) The
AAO performs a “final merits determination” to evaluate the significance
of the evidence and to determine if as a whole the evidence would
demonstrate that the petitioner/beneficiary qualifies for classification as
an alien with extraordinary ability based on a level of expertise that
indicates he is at the top of his field and that his achievements have
garnered sustained national or international acclaim.

Following Kazarian, the USCIS recently issued an Interim Draft Memo adopting
the same two-step analysis for all EB-1A Alien of Extraordinary Ability, EB
-1B Outstanding Professor/Researcher, and EB-2 Alien with Exceptional
Ability petitions. Many clients have contacted our firm expressing concerns
that the draft memo increases the standards for EB-1A or EB-1B. We would
like to reiterate that the USCIS is NOT imposing any additional standards.
The very crux of the Kazarian decision clearly states that USCIS has no
authority to unilaterally impose additional standards. They must make their
decisions based on the standards delineated under the Immigrant and
Nationality Act and the Code of Federal Regulations. Neither the law nor
the regulations have changed with respect to EB-1A or EB-1B. The only
difference is how the USCIS approaches the relevant legal analysis.

Although the two-step approach is considered “new,” in actuality, the
USCIS and AAO’s analysis remains unchanged. The only difference is now
some of the traditional analysis has been moved from part one to the final
merits determination in part two. Those who are familiar with past AAO
decisions may find that certain legal reasoning and language formerly
included in the analysis of separate criteria are now moved to the section
on final merits determination. For example, in prior decisions, if a
petitioner/beneficiary submits evidence that s/he has served as a peer-
reviewer three times, the USCIS or the AAO would have stated that the
petitioner/beneficiary does not meet the criterion of judge of the work of
others because three reviews would be considered as part of normal job
duties and not evidence of extraordinary abilities. Now, under the two-
part approach set forth in Kazarian, in part one, the USCIS or AAO would
find that the petitioner/beneficiary has submitted evidence of judge of the
work of others, but in part two the final merits determination, the USCIS or
AAO would find that only three requests for peer-review is not convincing
evidence of sustained national or international acclaim or someone who has
risen to the top of the field. Thus, the common reasons for denial in prior
petitions originally found in sections related to individual criteria would
now be moved to the final merits determination section. Although the
format of the decisions may have changed, the standards for proving
extraordinary ability or outstanding professor/researcher status remain
unchanged.

We also note that our firm has always employed a two-part analysis for our
EB-1A and EB-1B evaluations even before Kazarian. When reviewing a
potential client’s credentials during the evaluation process, our attorneys
always count the possible criteria first, and then analyze whether the
evidence in support of that criteria would support a claim of extraordinary
ability or outstanding researcher. As we have already done this for our
cases in the past years, we do not foresee any substantial changes in the
processing of EB-1A and EB-1B petitions based on the two-part Kazarian
approach or USCIS Interim Memo.

The AAO Decision can be found at http://niwus.com/files/AAO_Decision_20100824.pdf.

********************************************************************
刘宗坤律师(Z. Zac Liu, Esq.),法学博士(J.D., Valparaiso University School
of Law)、哲学博士(Ph.D., Peking University),伊利诺伊州最高法院及联邦法院
执照,曾担任Valparaiso University Law Review的编辑和审稿人, 著有中英文书籍
多种,散见于中美各大学图书馆。执业以来,他已代理无数名来自世界各地的科研人员
和专业人士成功获得绿卡及各类非移民签证,尤其在国家利益豁免(NIW)、特殊人才
(Eb-1A)、杰出教授和研究员(EB-1B)、PERM 劳工证、H-1B工作签证等方面积累了
丰富的经验。有兴趣提出申请的读者,可将简历发往evaluation@niwus.com。刘律师会
在两个工作日内对符合条件的申请做出免费评估。

白凯玲律师 (Kellie Pai, Esq.),法学博士(J.D.,University of Houston Law
Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执
照,联邦法院执照,刘宗坤联合律师事务所专业移民律师。

Christina T. Le 律师,法学博士(J.D.,University of Houston Law Center)、文学
学士(B.A., Northwestern University),德克萨斯州最高法院执照,联邦法院执照,
曾任Department of Justice驻Houston移民法庭Attorney Advisor,现任刘宗坤联合律
师事务所专业移民律师。

Sabrina Ong律师,法学博士 (J.D., Michigan State University College of Law)、
文学学士 (B.A., Oklahoma State University),密西根州最高法院执照,曾任
Michigan State University Law Review编辑,密西根上诉法院Prehearing Research
Attorney,现任刘宗坤律师事务所专业移民律师。

Karen Egonis 律师,法学博士(J.D.,University of Houston Law Center)、文学硕
士 (M.A., University of South Carolina)、文学学士(B.A., Texas A&M University
),新罕布什尔州最高法院执照,现任刘宗坤联合律师事务所专业移民律师。

Liu & Associates, PLLC
Wells Fargo Tower, 8th Floor
6161 Savoy Drive, Suite 830
Houston, Texas 77036
Tel: (800) 878-1807
(713) 974-3893
Fax: (866) 608-2766
Email: zliu@niwus.com
Website: www.niwus.com








[快速返回]
赞助链接
未名交友
将您的链接放在这儿
联系我们 - 服务条款 - 隐私权政策
版权所有 - 未名空间 - 中国大陆站(mitbbs.com.cn)- since 1996
京ICP备11000798号