1. Talk to your client…don’t just go by your client’s CV
While a client’s CV may be helpful in getting an initial sense of his qualifications, its worth having a discussion with your client to get a clearer picture of what he does that sets him apart. You may need to meet with your client repeatedly to help him/her understand the regulatory criteria and how his achievements can be shown to satisfy those criteria. Many individuals are so involved in their work that they do not necessarily view what they are doing as extraordinary or outstanding, while others may be too humble to ‘brag.’ Review the criteria with them several times — each time, new information will come out.
2. Make the petition easy for the USCIS officer to approve
Always tell a story that the USCIS Adjudicator will understand and enjoy. Whether your client is an artist or a scientist, you must make what he or she does interesting and understandable. This may seem obvious, but if the USCIS adjudicator does not understand the beneficiary’s work or the significance of her accomplishments, the I-140 petition will probably not be approved. The most striking aspects of the beneficiary’s ‘extraordinary ability’ should be readily apparent, and should be presented in terms that have meaning for, and are likely to make an impression on a lay person. This means less ‘technical mumbo-jumbo’, as one Service Center Director lamented, and more ‘man on the street.’ If its not something you, as the preparer will understand, you certainly cannot expect a USCIS adjudicator to understand.
In fact, you may want to include a public policy argument, as there are numerous reports about how the U.S. is losing its technological edge because there is a huge skill gap in this country. It’s probably not going to make a difference with USCIS or the AAO, but when you take it to federal court – then the policy argument may make a difference. Take a look at: “Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System,” Chris Gafner & Stephen Yale-Loehr, 38 Fordham Urb. L.J. 183 at 202 (2010); and the USCIS STEM Degree OPT Extension Regulation for ideas on how to make a policy argument.
3. Reference letters as a tool to inform
Perhaps the most frequently asked questions about EB-1/EB-2 petitions pertain to the letters: how many, from whom, what should they include, what should they not include, and does USCIS even look at them? There is no one clear answer to any of these questions (including whether or not USCIS reads them), but for an adjudicator friendly approach, consider using the letters to explain what the applicant does at a level anyone can understand. This is not to say that a letter asserting the ‘major significance of beneficiary’s contributions’ or the ‘truly groundbreaking results’ is sufficient; in fact, such statements could be understandably categorized in an RFE or denial as ‘mere assertions’ or ‘vague claims of contributions.’
Adjudicators review petitions from individuals in many different and distinct fields. In any one day, it is possible that a USCIS adjudicator reviews petitions from such diverse occupations as writer, mechanical engineer, biochemist, painter, virologist, not to mention the many different specialties and sub-specialties. Therefore, for the letters to be of value to the petition, they should explain the individual’s skills and expertise in terms that a lay person – someone with absolutely no knowledge of the field – can understand. The letters should be a bridge from the unfamiliar to the everyday; they are an opportunity to give meaning to what otherwise may be perceived as ‘technical mumbo-jumbo.’
Moreover, as to the question of ‘whom’, do not rely solely on your client to find support letter authors. Think of other clients or connections that you might have who could do letters, or help you find others to do letters. Look on-line for people who might be helpful. Network!
In a recent AAO precedent decision, Matter of Skirball, 25 I&N Dec. 799 (AAO 2012), the AAO found that where the RFE does not question the credentials of the experts, take issue with their knowledge, or otherwise find reason to doubt the veracity of their testimony, it has no basis to reject the reliability and relevance of testimony to the specific facts in issue.
4. Document, document, document
USCIS adjudicators are not experts in the many different fields our clients engage in, and cannot be expected to understand the importance of the Maurice H. Cottle Award, or even the Fields Medal. Rather, if documentation of such an award is included, evidence of the criteria for such an award, the selection process, and the reputation of the organization granting the award should also be included. Similarly, if you are arguing ‘judge of the work of others,’ make sure to evidence that your client did the review work, not just that he was invited to do it. If you are arguing ‘memberships in organizations that require outstanding achievement,’ you must evidence more than that the client is a member; you must also include the organizational by-laws to show that the membership was granted based on outstanding achievement.
However, all of this should be balanced against the preponderance of the evidence standard, and it’s often helpful to remind USCIS of the same.
5. More is not necessarily better, sometimes it’s just more
Notwithstanding the advice above, drowning a petition in documentation is not the best strategy as it makes it a much harder chore for the USCIS adjudicator. Moreover, it may also have the unintended consequence of masking the beneficiary’s achievements, focusing USCIS’ attention on a ‘travel award’ and away from the 500 articles that cite to the beneficiary’s findings. Make sure that all the documentation clearly relates to the beneficiary and the beneficiary’s achievement.
6. Make Google Your Friend, Not Your Enemy
Remember that USCIS Adjudicators have the same access to the Internet that you have. If you Google your client’s name and nothing comes up, you will probably have a hard time convincing an examiner that your client is extraordinary. In fact. USCIS is concerned about fraud (See Matter of X, LIN 06 256 51548, (AAO April 9, 2010). Fact check before you file your petition. If one of the support letters says that the applicant published an article in Nature, make sure you have documentation proving that the applicant published an article in Nature such as a copy of the article, letter from the journal verifying publication, etc; make sure the applicant’s name is spelled correctly in the support letters and that there are no factual inconsistencies between letters. Google your client to make sure they are telling the truth and not making it all up.
7. An O-1 does not equal EA
While the criteria for a non-artist O-1 petition and the criteria for an alien of extraordinary ability are virtually identical, successfully petitioning for an O-1 does not enhance one’s chances for the EB-1 I-140. For one, the O-1 is a non-immigrant visa, and as such, confers a limited benefit. To USCIS, this implies a slightly lower standard. For another, USCIS offices can be territorial, and the fact that the California Service Center (CSC) or the Vermont Service Center (VSC) approves an O-1 petition, does not mean that the Nebraska Service Center (NSC) and the Texas Service Center (TSC) will also find ‘extraordinary ability’. An I-140 petition should be prepared and filed on its own merits.
8. Consider filing under more than one category
If you are not certain that your client meets the “extraordinary ability” criteria, consider filing an EB-2 Exceptional Ability/National Interest Waiver, which will often get the same result, especially when EB-2 is not backlogged. In fact, you may want to file in both categories – this is two separate petitions and two separate filing fees, but it gives your client the opportunity to have her credentials considered under two distinct standards. Moreover, you may be less inclined to shy away from unusual or quirky cases, which are often the most fun! Athletes in lesser-known sports and all kinds of artists can make for challenging but interesting cases.
9. Be ready for an RFE.
Advise your client to expect one. If possible, hold back a few pieces of evidence so that you will have something to send in response to the RFE. Kazarian is not going to be resolved by liaison with USCIS, or the AAO, it will ultimately be resolved in federal court. Prepare your case with the mindset of having to take it to federal court.
10. Knowledge is Power: Know the Law, Know USCIS position
USCIS Guidance on EB-1 Petitions:
“Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005.1 (December 22, 2010)
Federal Court Cases:
Rijal v. USCIS – district court – AILA Doc No. 11061335
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).
Buletini v. INS, 860 F. Supp. 440 (N.D. Ill 1995), and its legacy:
Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995);
Racine v. INS, 1995 U.S. Dist. LEXIS 4336, 1995 WL 153319 (N.D. Ill. Feb. 16, 1995).
Russell v. INS, 2001 U.S. Dist. LEXIS 52 (E.D. Ill. Jan. 4, 2001).
Gulen v. Chertoff, 2008 U.S. Dist. LEXIS 54607 (E.D. Pa. July 16, 2008).
Recent AAO decisions:
AILA Doc No. 12062752 – reversed denial of EB-1 Contemporary Artist
AILA Doc No. 12062753 – reversed denial of EB-1 Business Expert
AILA Doc No. 11122960 – reversed denial of Outstanding Researcher
AILA Doc No. 10061063 – sustained denial of outstanding researcher
AILA Liaison Efforts
AILA Amicus Brief to AAO Re Final Merits Analysis – AILA Doc No. 11110261
AILA Comments on USCIS’s Policy Memo on EB-1 Petitions – AILA Doc No. 11072274
AILA Comments on Interim Policy Memo on EB-1 Petitions – AILA Doc No. 10090733
AILA Comments on USCIS RFE Template – AILA Doc No. 10092466
David Roark, Texas Service Center Director speaking at 2009 AILA Annual Conference in Las Vegas, NV.
Suzanne B. Seltzer “O-1: Going from Oy Vey to Okay!” in Immigration Options for Academic & Researchers (2nd Ed; 2011)
AILA Doc 10081961 – August 19, 2010. TSC liaison minutes voiced concerns about ‘extremely voluminous filings, often filling several crates…. including copies of entire books written by the Beneficiary as well as numerous copies of the same documents….filers should use their best judgment about what is required to support these applications, and please remember to explain how the documentation submitted satisfies the evidentiary criteria.’ (AILA Doc 10081961 – August 19,2010 TSC liaison minutes)