Appeal of an Alien of Extraordinary Ability is rejected by Administrative Appeals Office

Posted On: March 27, 2009

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

The Petitioner filed an employment based immigrant visa petition on behalf of an alien with extraordinary ability, a Chinese Opera artist. To be eligible to qualify for the visa, the regulation provides that an alien have extraordinary ability in the sciences, arts, 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. The term “extraordinary ability” means 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. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or international acclaim through evidence of a one-time achievement (that is, a major, internally recognized award). Barring the alien’s receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The AAO provided that in determining whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or consistent with sustained national or international acclaim.

Upon review of the petition, the AAO considered the evidence submitted by the petitioner for nine of the ten criteria. After a thorough review of each piece of evidence, the AAO ultimately denied the appeal. There were various problems with this petition. All documents that were submitted for review along with their English translations were insufficient. The translated English documents were not certified as required by the regulations, and as such the AAO could not afford the documents any weight in its evaluation of the evidence. Additionally, other evidence tended to show that the alien performed locally rather than nationally or internationally, and that many competitions he entered were restricted to the youth. In addition, the published material submitted about the alien was not sufficient as the materials were not specifically about the alien, and there was no evidence presented that the publications constituted major media. The petitioner also submitted several letters of recommendation regarding his talent and expertise in the field. The AAO responded to the letters by stating that talent in one’s field is not necessarily indicative of artistic contributions of major significance, and that although the alien earned the admiration of those providing letters, there was nothing to demonstrate that his work has had major significance in the field at large.

In conclusion, the petitioner failed to demonstrate receipt of a major, internationally recognized award, or that he meet at least three of the regulatory criteria. The burden of proof rested with the petitioner, and the petitioner was unable to sustain that burden. Accordingly, the AAO stated that even if the petitioner’s appeal and subsequent motions were not rejected, the petition would have remained denied.