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The AAO Makes Extraordinary Ability Extraordinarily Hard to Prove
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By Chris Gafner, Carolyn S. Lee, and Stephen Yale-Loehr* We recently reviewed 22 cases decided by the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) to discern current trends in EB-1-1 adjudications for people of extraordinary ability. As background, EB-1-1 immigrant classification is reserved for immigrants with extraordinary ability in the sciences, arts, education, business, or athletics. As codified at 8 C.F.R. section 204.5(h)(3), extraordinary ability is demonstrated by sustained national or international acclaim, and evidenced through a one-time achievement of a major, internationally recognized award or through evidence of achieving at least three of ten standards set forth in the regulations. Merely meeting three of the ten standards is not enough to ensure extraordinary ability classification. In determining whether a petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it establishes that the petitioner has sustained national or international acclaim. These high standards mean that only about 2,000 people a year qualify for EB-1-1 classification. For people whose EB-1-1 applications are denied by a USCIS regional service center, the chances of prevailing on appeal are extraordinarily difficult. Of the 22 appeals we reviewed, all but one was denied by the AAO. Of the 22 cases, there were six athletes, six artists, seven scientific experts, two business executives, and one legal correspondent for a TV network. The four USCIS service centers all originally decided at least one of the cases. The Nebraska Service adjudicated six cases, the California Service Center eight, the Vermont Service seven, and the Texas Service Center one case. We summarize four representative decisions below, and then present some recommendations. Extraordinary Ability in Science: A Minute Early and a Criterion Short The seven petitioners who sought classification as persons with extraordinary ability in science included a medical post doctorate fellow, postdoctoral physicist, a manufacturer of waste treatment systems, an engineer, a theologian, a staff scientist at a publicly-traded genomics corporation, and a cell biologist. The AAO’s denial of the cell biologist’s petition (Matter of [name not provided], File No. [not provided], Nebraska Service Center (AAO Jan. 7, 2002)) exemplifies the denials of the other petitions claiming extraordinary ability in science. The cell biologist, a research associate at the Howard Hughes Medical Institute at the University of Chicago, asserted that he met eight of the ten criterions for EB-1-1 classification. Lesser awards: The petitioner claimed his receipt of nationally recognized awards of excellence through evidence of his nomination for an Indian National Science Academy Award. The AAO rejected this claim, noting that the petitioner did not claim to win the award, and that furthermore, as a “Young Scientist award,” the most established and experienced scientists were excluded from consideration. Published material about the individual: The petitioner claimed to have published materials about his work in professional or major trade publications, providing citations as evidence. The AAO reiterated that mere citations of a researcher’s work do not demonstrate that the article is “about” the petitioner’s work. Original contribution: The petitioner submitted letters of reference claiming that his work on “mad cow disease” was an original scientific contribution of major significance in his field. The AAO contended that while the petitioner may have been doing original research in an important field, the fact that his current work was yet to be published left open the question of how significant the contribution would be. The AAO noted that although the reference letters did carry some weight, the fact that a number of the writers had worked directly with the petitioner limited their weight in proving broader national acclaim. Authorship of scholarly articles: The petitioner provided evidence that he has published five scientific articles in professional or major trade publications. Citing a report by the Association of American Universities’ Committee on Postdoctoral Education, the AAO found that publications are an expected activity of a researcher. Therefore, the petitioner needed to prove that five articles was a high number of publications compared to others in the field, which he failed to do. High salary: The petitioner contended that he commanded a high salary as a postdoctoral researcher in biochemistry. However, the AAO replied that a high salary as a postdoctoral researcher did not mean that the petitioner had a high salary compared to all of the experts within the field, including professors and higher-level researchers. Display of work in artistic exhibitions: The petitioner asserted that he met the criterion of displaying his work at artistic exhibitions or showcases, but the AAO dismissed this assertion by ruling that this criterion does not apply to extraordinary ability in the sciences. Judge of others’ work: The petitioner submitted evidence that he has reviewed nine manuscripts submitted for publication. The AAO found that the petitioner’s postdoctoral advisor actually received the requests to review the manuscripts. Membership in an sssociation: Although the petitioner did not belong to any organizations, he submitted evidence of requests that he had received to join such organizations. The AAO rejected this evidence as insufficient to satisfy this criterion. On appeal, the petitioner submitted evidence of two important recent accomplishments. First, the petitioner had applied for membership in organizations requiring outstanding achievements of their members. Second, the petitioner had recently had his original research published in the highly acclaimed journal Science. Although both of these accomplishments are germane to EB-1-1 classification criteria, the AAO disregarded these achievements because they came after the original submission of the petition. The AAO cited Matter of Katigbak, 14 I. & N. Dec. 45, 49 (INS Reg. Comm’r 1971), which held that petitioners must possess the necessary qualifications as of the filing date of the visa petition. Extraordinary Ability in Business: An Oil Slick on the Way to Approval Two petitioners sought classification as persons with extraordinary ability in business. One case involved a revocation of an approval by the California Service Center. The other case involved a businessman in the Russian oil industry. The AAO’s dismissal of the oil executive’s case (Matter of [name not provided], File No. WAC-00-061-52675, California Service Center (AAO Apr. 22, 2002)) may exemplify the inherent difficulties for those in the business field in satisfying the regulatory criteria, particularly if they are from an unstable country. Proving broad, sustained national acclaim where the nation is in transition or otherwise fractured may be very difficult. Lesser prizes: The petitioner submitted “diplomas” issued by a Soviet ministry. The AAO dismissed these as mere “performance awards” from old employers, not national awards for which experts from all over the entire country competed. Membership in an association: The petitioner claimed he was a member of several associations, but the AAO found that there was no evidence of these organizations requiring outstanding achievements of their members. Original contribution: The petitioner argued, among other things, that he negotiated a means by which Kazakhstan, suddenly cut off from refineries in the breakup of the Soviet Union, was able to send oil overseas for refining. The AAO rejected this claim as an original contribution of major significance, because there was no evidence that the petitioner’s work served as an example for other former Soviet countries or for other executives in Kazakhstan facing similar problems. Critical role for organizations of distinguished reputation: The petitioner submitted evidence that he served as chief engineer responsible for 30-35 other engineers in a significant project. The evidence also indicated that his employer’s total workforce was around 4,000. The AAO responded that supervising 35 out of 4,000 employees in a single project did not amount to a critical role for the company as a whole. To show that the organization in which he served as a director was one of distinguished reputation, the petitioner submitted a letter from Barclays Bank confirming that the company is “considered a respectable and trustworthy company.” The AAO responded that creditworthiness does not necessarily mean that the company has a distinguished reputation. Furthermore, while acknowledging that the petitioner need only prove national acclaim, the AAO found the absence of letters from British counterparts of the joint ventures damaging. Commercial success in performing arts: As comparable evidence to commercial success in the performing arts, the petitioner’s counsel claimed that he was responsible for a 400% increase in assets of a company under his direction. He also claimed that he was responsible for a 500% increase in assets for another company. He submitted balance sheets as support. The AAO examined the balance sheets and found that counsel had grossly inflated the numbers and mischaracterized the nature of the numbers on the balance sheet. According to the AAO, this cast doubt on the reliability and sufficiency of other proffered evidence. Extraordinary Ability in Athletics: Don’t Take Me Out to the Ball Park The six petitioners that sought classification as persons with extraordinary ability in athletics included two volleyball players, a martial arts expert, a gymnastics coach, a judo competitor and coach, and a major league pitcher with the Cleveland Indians. The AAO’s adjudication of the baseball pitcher’s petition (Matter of [name not provided], File No. [not provided], Nebraska Service Center (AAO Dec. 19, 2001)) illustrates the reasons cited in the denial of the other five athletic EB-1-1 petitions we reviewed. The petition argued that the pitcher showed sustained national acclaim by meeting six of the ten criteria. The AAO disagreed, holding that none of the criteria was met. First, the AAO reminded the petitioner, as it did in three other athletic petitions reviewed, of 56 Fed. Reg. 60,899 (Nov. 29, 1991), which states: The Service disagrees that all athletes performing at the major league level should automatically meet the “extraordinary ability” 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.” Membership in an association: The petitioner claimed that he had achieved membership in associations in baseball that require outstanding achievements of their members through his membership in the Cleveland Indians and in the Major League Players Association. The AAO disagreed, reasoning that a sports team is not an association. The AAO did not address the claim that membership in the Major League Players Association satisfies this criterion. Published material about the individual: The petitioner presented evidence that he had materials about himself published in professional or major trade publications or other major media by submitting a press release from the Cleveland Indians concerning the team’s acquisition of the petitioner, an article in the Akron Beacon Journal, several Spanish-language publications, and an article from an unspecified paper. The AAO dismissed the evidence, stating that neither a press release nor an article in a local paper (the Akron Beacon Journal) demonstrated national acclaim. The AAO also held that publications in foreign countries are not evidence of national acclaim in the United States, where the petitioner plays baseball. The AAO also pointed out that articles that merely mention the petitioner in passing do not meet the intended criterion. Critical role for organizations of distinguished reputation: The petitioner claimed that he played a critical role as a pitcher for an organization with a distinguished reputation. As evidence the petitioner submitted a number of letters from his teammates and the general manager of the Cleveland Indians stating the importance of the player to the team. The AAO rejected this evidence, reasoning that the teammates’ opinions were not supported by other evidence. The AAO also found that that the petitioner had too few wins to have played a critical role for the team. High salary: The petitioner also contended that he commanded a high salary compared to other baseball pitchers. The average pitcher’s salary at the time was $250,000 per year, while his was substantially higher, possibly reaching $1.4 million in 2000. However, the AAO ruled that the petitioner “must demonstrate that his salary is high when compared to other highly paid pitchers, not merely higher than the average salary for a pitcher.” Significantly, even though the criterion clearly states that a petitioner must demonstrate that they have “commanded a high salary … in relation to others in the field” (emphasis added), the AAO placed the petitioner in a more exclusive, higher paid peer group than the regulatory language requires. Display of work in artistic exhibitions; commercial success in the performing arts: The petitioner also claimed to have met the two criteria of displaying his work at artistic exhibitions or showcases, and having commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. The AAO dismissed both arguments, stating that neither criterion applies to persons seeking classification as extraordinary athletes. Extraordinary Ability in the Arts: Models with Extraordinary Looks The six petitioners that sought classification as persons with extraordinary ability in the arts included a screenwriter/actor, an acrobat, a musical composer, an author, a Chinese opera singer, and a fashion model. The AAO’s reasons for denial of the fashion model’s petition (Matter of [name not provided], File No. [not provided], California Service Center (AAO Jan. 3, 2002)) exemplified the reasoning in denying the five other EB-1-1 artistic petitions. The petitioner sought EB-1-1 classification due to his claimed national acclaim as a “black fashion model.” He claimed to meet seven of the ten regulatory criteria. The AAO gave little weight to the petitioner’s arguments. Among other things the AAO held that a field of endeavor cannot be narrowed to a particular ethnic group. Membership in an association: The petitioner contended that his inclusion in the Screen Actor’s Guild was evidence of his membership in associations that require outstanding achievements of their members. The AAO rejected that claim, finding that the Screen Actor’s Guild is an organization of actors, whereas classification is sought in a different field of endeavor (as a fashion model). Published material about the individual: As evidence of published articles about the petitioner’s work, the petitioner submitted a profile of his career printed in the Toronto Star and numerous printed advertisements in which he appeared. However, the AAO dismissed the evidence, explaining that there was no evidence indicating that the Toronto Star is not a local publication, and that appearing in advertisements is inherent to the fashion model industry and was therefore insufficient evidence of published material about him. Original artistic contribution: Petitioner’s counsel asserted that the petitioner had made original artistic contributions to the field. Citing Matter of Obaigbena, 19 I. & N. Dec. 533 (BIA 1988), and Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980), the AAO reiterated that assertions of counsel do not constitute evidence. Although counsel referenced outside support letters from the industry, the AAO asserted that the support letters were too vague to support the counsel’s assertions. Authorship of scholarly articles: Counsel claimed that the Toronto Star article was evidence of the petitioner’s authorship of scholarly articles in the field because it was written in the first person. The AAO rejected this claim, pointing out that another individual was credited on the article as the writer. Critical role for organizations of distinguished reputation: The petitioner asserted that he played a critical role for major companies because he was a primary model in the companies’ advertisements. The AAO ruled that appearing in such advertisements does not by itself constitute playing a critical role in the company. The AAO noted there was no evidence to support that petitioner was responsible for any increase in sales, or that the executives of the company would credit the petitioner for an increase in sales or even knew of him. Display of work in artistic exhibitions: The petitioner submitted photographs of himself in a photography art exhibition as evidence of the display of his work at artistic exhibitions or showcases. The petitioner asserted that since models must interact with their environment and the camera, the photographs were in fact evidence of the petitioner’s work. The AAO rejected this claim, finding that the photos did not evidence the petitioner’s national or international acclaim, as opposed to that of the photographer. High salary: The petitioner did not claim to have commanded a high salary in the field. However, the AAO invoked the criterion because one of the support letters stated that the petitioner’s earning potential was “on par with his veteran status.” This led the AAO to question why the petitioner would be compensated only “on par” if the petitioner had indeed sustained national acclaim and was one of the top figures in the modeling field. Recommendations We offer the following recommendations based on the AAO case law and our own law firm’s extensive track record in filing EB-1-1 petitions. The recommendations can be divided into two groups: (1) interviewing clients at the intake; and (2) use of evidence. Timing: It is important to determine the appropriate time to petition for EB-1-1 classification and to counsel clients accordingly. The AAO rejected post-filing submissions of evidence in many of the cases, citing Matter of Katigbak. Under Katigbak, petitioners must possess the necessary qualifications at the time of the original visa petition. For example, in the cell biologist case above, the petitioner submitted his petition when an article on his research was being considered for publication in the prestigious journal Science. If he had waited until after this article was published, his case would have been stronger. Field of endeavor: It is also important to strategically think about and identify the field of endeavor in which the petitioner is seeking extraordinary ability classification. Although the rule of thumb is to have the narrowest field possible (i.e. high energy elementary matter physicist vs. physicist), the AAO might reject such a narrow categorization, unless evidence is submitted to justify it. Furthermore, the AAO will view the submitted evidence in light of that narrow category, and dismiss any evidence submitted in support of extraordinary ability outside the narrow category. Material about the individual: There seems to be widespread misunderstanding of a number of nuances of this criterion. Many petitioners presented evidence of citations to the petitioner’s works as evidence of published material about the petitioner. However, the AAO has repeatedly stated that citations do not satisfy this requirement. Criteria applicable to foreign national: As the AAO has repeated, not all of the criteria are appropriate or apply to their client’s field of endeavor. One frequent misapplication of a criterion is a petitioner’s assertion of their work being displayed in artist showcases when in fact the petitioner is seeking classification as a scientist or an athlete. Supporting letters: When collecting evidence for an EB-1-1 petition, supporting letters submitted by other experts in the field should be carefully screened for any damaging statement or implication. The letters should clearly support the specific criterion claimed satisfied and avoid raising extraneous questions. Remember that the fashion model’s agent wrote in his support letter that the model’s compensation was “on par” with other models of the same veteran experience. This one phrase led the AAO to question why, if the model was at the top of his field, he was only “on par” with other fashion models. Attorneys should work with people writing support letters, review the letters before they are finalized, and ask the writers to revise the letters if necessary. Extraordinary businesspeople: The ten regulatory criteria on their face appear unfriendly to businesspeople, being ostensibly addressed to criteria relevant to excellence primarily in academics, athletics or the arts. For foreign nationals from countries in some disarray, these criteria can be even more difficult to satisfy. For example, a client may have achieved an extraordinary feat for a company or even an entire industry in difficult times, but if this feat did not result in national acclaim or recognition of some sort for the client, he or she will have difficulty proving extraordinary ability. In countries where business practices are disjointed, this kind of national acclaim or influence may be difficult to prove. Conclusion Petitions for EB-1-1 classification should be approached pragmatically and in consideration of the high bar the regulations establish for proving extraordinary ability. Some persons simply do not qualify for classification as a person with extraordinary abilities. The attorney should also counsel a client to delay his or her petition if there is a possibility that stronger evidence of sustained national or international acclaim may be forthcoming. The best advice for an attorney when compiling an EB-1-1 petition is to regularly review the regulatory requirements for classification and recent AAO decisions. Given the most recent decisions, it appears even harder than before to qualify for EB-1-1 classification. _________________ * Chris Gafner (ceg@millermayer.com) graduated from Cornell University in 2001 was a legal researcher at True, Walsh & Miller, L.L.P. in Ithaca, NY.
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