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LPY Law Group

AAO Sustains Appeal Filed by LPY Law Group

On April 4, 2018, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group and approved the EB-1A I-140 petition that was originally denied by the United States Citizenship and Immigration Services (USCIS) Nebraska Service Center (NSC).

The EB-1A I-140 petition was originally filed with the USCIS in June 2017. The petitioner/beneficiary was a physics 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 showing that he met at least three criteria as required by 8 CFR §204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service.

The NSC Premium Processing Unit issued a Request for Evidence (RFE) seeking additional information. A timely response was submitted with additional evidence.

In August 2017, the NSC denied the Eb-1A I-140 petition, based on alleged lack of evidence demonstrating sustained national or international acclaim and a rank among the small percentage at the very top of the field of endeavor upon final merits determination.

In review of the NSC decision, we found that it contained mistakes of law and direct contradictions of the holdings and guidance found in previous AAO decisions. Under 8 C.F.R. § 103.3(a)(2), the petitioner can appeal a USCIS decision before the AAO within 30 days after the final decision was made by the USCIS. The petitioner/beneficiary decided to bring the case to the AAO.

On appeal, we enumerated how the NSC decision repeatedly failed to consider the significance of the evidence submitted. For example, in evaluating the original contributions of major significance criterion for final merits determination, the NSC concluded “the beneficiary’s record neither distinguishes himself from other researchers, nor establishes that he is recognized nationally or internationally as one of that small percentage who has risen to the very top of the field” despite the submission of evidence that included both a publication and citation record showing hundreds of independent citations to his scientific contributions by researchers and scientists in more than 30 countries and over a dozen U.S. states. Specifically, the NSC characterized the hundreds of citations to the petitioner/beneficiary’s publications as a “moderate” number of citations, which is in direct contradiction to the previous AAO holdings and guidance that find “dozens of independent cites” to be “solid evidence that other researchers have been influenced by the petitioner’s work and are familiar with it.” The USCIS also failed to acknowledge the significance of evidence submitted by the petitioner/beneficiary that demonstrated his publications are some of the most-cited papers in his field and place him in the top 1%-10%. We therefore requested the AAO to consider the significance of the evidence submitted by the petitioner/beneficiary in line with the holdings and guidance frequently found in previous AAO decisions.

The AAO agreed with our arguments and found that the petitioner/beneficiary’s publication and citation records “are commensurate with being at the very top of the field and demonstrate that his publication record sets him apart through a ‘career of acclaimed work in the field.’” The AAO also considered the fact that the petitioner/beneficiary provided “ample documentary evidence supporting the independent references’ statements in the form of expert opinion letters regarding the Petitioner’s standing in the field and the significance and originality of his work.” Based on these findings, the AAO held that the petitioner/beneficiary meets the eligibility for EB-1A classification upon final merits determination. Accordingly, the AAO sustained our appeal and approved the case. 

The majority of EB-1A I-140 cases we file are adjudicated properly and approved with or without requesting for additional evidence. However, from time to time, we have received USCIS decisions that conflict with many previous decisions and contain material mistakes of law and/or facts. When this happens, the petitioner/beneficiary has two options: appeal the case before the AAO or file a new petition in the same classification. Which option is better is not always immediately apparent; as in many cases, a seemingly simple question may demand sophisticated answers.

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