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  • Article: EB-1 Extraordinary Ability Immigration Cases: Tales from the RFE By Matt Gaffron and Bruce Coane

    EB-1 Extraordinary Ability Immigration Cases: Tales from the RFE

    by


    Introduction: The Best of the Best

    In the work that I do as a Houston Immigration Lawyer at Coane and Associates, PLLC, I am primarily involved in the preparation of EB-1 Extraordinary Ability petitions.

    EB-1 petitions are very document intensive – an average one might be anywhere from 400 to 700 pages, and I have prepared them with as many as 1,300 pages of evidence. In addition, many of them are extremely subjective. What, precisely, is “major significance”? What is an “outstanding achievement”? What constitutes a “critical role”? With so much left up to the individual adjudicator’s discretion, it is perhaps not surprising that the Extraordinary Ability petition is not-uncommonly the subject of a Request for Evidence (RFE) in which the USCIS attempts to “clarify” its positions regarding what, exactly, each of these criteria demand, and how they can be met.

    As might also be anticipated, however, these RFE’s often are asking for unnecessary evidence, creating new and unsupported evidentiary standards and even, in some cases, outright ignoring the evidence in front of them. This series explores some of the more interesting assertions the agency has made in RFE’s which they have issued, and how those assertions might be addressed in a response.

    Part 2: Take me to your leader?

    As opposed to the “judging” criterion which we examined in Part 1, 8 C.F.R. §204.5(3)(viii) – asking that the petitioner provide, “Evidence of the petitioner’s performance of a leading or critical role in distinguished organizations,” is very much subject to the subjective opinion of an adjudicator. 8 C.F.R. §204.5(3)(viii). After all, what is a “leading role”? How does somebody show themselves to be working in a “critical” role?

    Providing evidence of a distinguished reputation is not, typically, particularly difficult or questions in the RFE’s we receive. Assuming that the petitioner works for a major corporation, printouts from such sources as the Wall Street Journal, Forbes, or even Wikipedia – coupled with the “about us” from the company website, generally prove to be sufficient. It is in proving the “leading or critical” nature of the petitioner’s roles that the agency seems to run into some roadblocks. While the regulation itself does not define what constitutes a leading or critical role, but, helpfully, the USCIS has provided just such guidance in its own policy. Under USCIS policy, it states that:

    “If a leading role, the evidence must establish that the alien is (or was) a leader. A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading. If a critical role, the evidence must establish that the alien has contributed in a way that is of significant importance to the outcome of the organization or establishment’s activities. A supporting role may be considered “critical” if the alien’s performance in the role is (or was) important in that way. It is not the title of the alien’s role, but rather the alien’s performance in the role that determines whether the role is (or was) critical.”

     

    Policy Memorandum PM-602-0005.1, (Dec. 22, 2010) (emphasis added)

     

    While those definitions seem fairly clear, the RFE’s we have received seem to indicate that there is, in fact, a great deal of confusion remaining among USCIS adjudicators regarding how these roles are defined and what the evidence needs to show.

    The first sign of confusion commonly seen in RFE’s received at our Texas Immigration Law office is the common assertion that, “the evidence does not establish that the role the beneficiary has performed in [was] leading and critical.” While the RFE may be worded that way because, typically, a petition will provide evidence that the petitioner has acted in both roles, it is important to point out in the response that the correct word is “or”. The petitioner only needs to show that he has performed in a role that was either leading or critical. I had intended to address both in this post, but both have so many nuances that, for the sake of brevity, this article will focus primarily upon establishing a “leading” role.

    Showing that the petitioner has performed in a leading role, typically, is easier. Organizational charts seem to be quite convincing, especially if backed up by a job description and support letters.

    That being said, the adjudicator may, through the RFE, attempt to create new standards which the petitioner needs to reach, despite the language in Kazarian which dictates that, “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. §204.5.” Kazarian v. USCIS, 596 F.3d 1115, 1121 (9th Cir. 2010). Again, this is the easier part of the criterion to prove, but in at least one RFE, the USCIS started by stating that, “The evidence must establish that the petitioner has been a leader or has somehow contributed in a way that is of significant importance to the outcome of the organization or establishment’s activities,” and, in the next paragraph, states that the petitioner, “has been in management for some very prestigious…companies.” Taken together with the USCIS policy, that would seem to be the end of the inquiry – the petitioner has a management title and matching duties, therefore he has a leading role.

    In this case, however, the RFE goes on to say that:

    “The intent of this criteria is to show that it is the extraordinary skill that is the contributing factor to the role being leading or critical. Every corporation has leading roles that they need in order to conduct business. The…industry has leading roles in every department but that doesn’t mean the organization would suffer if that person changed jobs. This benefit is for the very top in the field and that can be nationally or internationally recognized. The evidence must support that claim.”

    Even putting aside that it creates the kind of ultra-vires evidentiary hurdle Kazarian calls out, that standard has a great many problems with it. The first is that is conflates the first part of the Kazarian test with the second one – under the test, the policy tells the petitioner that, “First, USCIS officers should evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description,” and, “Second, USCIS officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.” Policy Memorandum PM-602-0005.1, (Dec. 22, 2010) (emphasis added). This is clearly a conflation of both steps into the initial analysis and is therefore not within the parameters of the policy, in the opinion on this Houston Immigration Lawyer. Quoting the AFM and the Kazarian memorandum, particularly it’s specific note that, “USCIS officers should not make a determination regarding whether or not the alien is one of that small percentage who have risen to the very top of the field or if the alien has sustained national or international acclaim in Part One of the case analysis,” is one way to combat this kind of conflation. Id. It may also be helpful to quote the language in Ins. v. Yang, 519 U.S. 26 (1996), which states that:

    “Though the agency’s discretion is unfettered at the outset, if it announces and follows by rule or by settled course of adjudication a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary, capricious, [or] an abuse of discretion” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).”

    Ins. v. Yang, 519 U.S. 26, 32 (1996)

    The conflation of the two part test – despite a very specific policy note against that practice – constitutes the very kind of “irrational departure from policy” which Yang prohibits.

     

    The RFE here is technically correct in that, “The intent of this criteria is to show that it is the extraordinary skill that is the contributing factor to the role being leading or critical,” inasmuch as meeting the criterion is the indicator of that extraordinary ability, and even the part of the quote that says, “This benefit is for the very top in the field and that can be nationally or internationally recognized. The evidence must support that claim,” is technically correct, if inartfully stated, but properly belongs in the Final Merits Determination, not within the initial “part one” analysis of the criterion. The middle explanation, that “Every corporation has leading roles that they need in order to conduct business. The…industry has leading roles in every department but that doesn’t mean the organization would suffer if that person changed jobs,” has to be interpreted as making one of two arguments, neither of which is supportable. The first is that, despite USCIS policy dictating that, “a title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading,” the role actually has to be leading AND critical – hence the requirement that the organization would suffer if that person changed jobs (which, as will be explained in the next post, is also a common misinterpretation of the “critical role”). That argument can be fairly effectively dispatched by simply pointing it out.

     

    The other argument would be that the language stating that, “the organization would suffer if that person changed jobs,” should be interpreted in the context of the earlier assertion that, “that it is the extraordinary skill that is the contributing factor to the role being leading.” Buckle up for some confusion, because that is a circular argument. If “the intent of this criteria is to show that it is the extraordinary skill that is the contributing factor,” then it makes no sense to require that the petition show that he has the extraordinary skill to meet the very criteria which is intended to show that he has extraordinary skill. Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994), nicely established that this kind of requirement is circular:

     

    “The fourth criterion, however, only requires evidence that the alien participated as a judge of others in his field; it does not include a requirement that an alien also demonstrate that such participation was the result of his having extraordinary ability. Such a requirement would be a circular exercise: the criterion is designed to serve as proof that plaintiff is a doctor of extraordinary ability; the Director’s requirement would mean that plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability.”

    Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994)

     

    While in that case, the court was talking about the “Judging” criterion, the circular argument – you can’t make a petitioner prove their extraordinary ability in order to prove their extraordinary ability – applies equally to all of them.

     

    The award for the most ridiculous argument in an RFE regarding this leading role, however, has to be that contained in a particularly egregious one that this Houston Immigration Lawyer received relatively recently. While this excerpt is fairly long (even with some judicious editing) it needs to be seen in its entirety to understand all of the context (and to be believed!):

     

    “The record shows that the petitioner worked… in different position [sic] over the years during his employment, the record lacks evidence to substantiate that the petitioner had worked as a Chief Executive officer or other higher leadership position, where he played a leading or critical role for the growth and profitability of the organization. In addition, the record… does not show the petitioner is working in the top management position in the organizational hierarchy, where the petitioner makes the top critical decisions of the organization… The record lacks evidence to demonstrate that the petitioner was the major source of the growth and standing of the organizations or establishments where he worked,,, To assist in determining that the beneficiary has performed in a leading or critical role… the petitioner may submit: Letters from current or former employer(s) or trainer(s) with personal knowledge of the significance of the beneficiary’s leading or critical role.”

     

    That is a great deal of nonsense to unpack, especially given that the same RFE elsewhere actually quotes the USCIS policy that: “A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading”. This petitioner held titles including “Operations Manager”, “Technical Manager”, and “Global Account Manager” and had submitted organizational charts showing that he was in charge of as many as 30 people, among many other pieces of evidence. So he meets the regulatory and policy-backed standard. In at least two of these statements alleging otherwise, however, there seems to be some confusion about which criterion is even being discussed. When the RFE is asking for evidence establishing, “the significance of the beneficiary’s leading role,” it appears they may be confusing the standards under this criterion with those under 8 C.F.R. §204.5(h)(3)(v), “Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field,” which do, in their plain language, require a showing of significance. 8 C.F.R. §204.5(h)(3)(v). Under 8 C.F.R. §204.5(h)(3)(viii), no such showing is required.

     

    Confusion also abounds in the assertion that any EB-1 petitioner has to have, “worked as a Chief Executive officer or other higher leadership position, where he played a leading or critical role for the growth and profitability of the organization,” that he must be, “working in the top management position in the organizational hierarchy, where the petitioner makes the top critical decisions of the organization”, or that he must show he, “was the major source of the growth and standing of the organizations or establishments where he worked.” (Emphasis added). There are, of course, no such requirements of any sort in any policy, law, or regulation. All of those are clearly ultra-vires standards of the type eschewed under Kazarian, made up entirely out of whole cloth. In the response to the RFE, we made the argument that perhaps the USCIS is confusing the requirements for an EB-1 petition based upon the petitioner’s Extraordinary Ability – as spelled out in 8 C.F.R. 204.5(h) – with an EB-1 petition based upon classification as a Multinational Executive or Manager – under 8 C.F.R. 204.5(j). In the latter, the definition used for “executive capacity” under that part of the regulation dovetails with the definition the agency is attempting to rely upon here – namely, that a person in an “executive capacity” would, “Direct the management of the organization,” and that he, “Establishes the goals and policies of the organization.” 8 C.F.R. 204.5(j)(2)(C). Those standards do not, of course, apply to the Extraordinary Ability petition.

     

    Perhaps more importantly, however, these new standards do not make much sense. Requiring a petitioner to have “worked as a Chief Executive officer or other higher leadership position, where he played a leading or critical role for the growth and profitability of the organization,” which, in this case, was a giant, publicly-traded multinational corporation; effectively would shut out almost every petitioner. Yes, this is meant to be a restrictive status, but it shouldn’t be that restrictive! Moreover, coupling that with the requirement that a leading role, in order to meet the criterion, must be one in which the petitioner, “makes the top critical decisions of the organization,” or, “was the major source of the growth and standing of the organizations or establishments where he worked” effectively keeps anyone working for any kind of good-sized corporation from ever qualifying for the visa. Was Steve Jobs making all of Apple’s critical decisions? Do the fortunes of Exxon/Mobil rise and fall in accordance with the decisions of any one individual? Of course they don’t, and there is no way that imposing such a standard is or ever was intended.

     

    One way to combat these assertions, in addition to quoting Kazarian and pointing out the possible confusion in use of the regulation, is to use AAO decisions on the point. While the grand majority of these decisions are non-precedent, they can be quite persuasive, and a quick search of the database shows that none of them back the agency’s ludicrous position here. More importantly, some of them DO establish exactly what constitutes a leading role. In Matter of S-C-S-, ID# 14723 (AAO, Dec. 9, 2015), the Administrative Appeals Office said that:

    “The Director found the Petitioner met this criterion by virtue of his position as a senior engineer at the electric company. In this case, the Petitioner demonstrated that [REDACTED] is a company with a distinguished reputation and that it has employed him as a senior engineer. In addition, the Petitioner has played a critical role on several projects leading to cost savings and improved reliability for the company. Accordingly, the Petitioner has satisfied this criterion.”

    Matter of S-C-S-, ID# 14723 (AAO, Dec. 9, 2015)

    If the petitioner in Matter of S-C-S- could be found to have played a leading or critical role as a “Senior Engineer”, it would stand to reason that the petitioner in this case, who has, at various points, been an “Operations Manager”, Technical and Sales Manager” and “Global Account Manager for Completion Operations” would easily qualify – or, as will be explored in the next post, that he would qualify as a critical role. Since the petitioner only needs to meet one or the other, and the case is unclear as to which – leading or critical – was determinative, it can and should probably be argued to apply to both.

     

    So, to sum up, if “a title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading”, then a detailed organizational chart, a job description, and mentions in the letters in support can – and often do – support that the criterion is met. If the RFE attempts to add these new standards, then it is important to point out that they are acting in contravention of Kazarian and the USCIS policy created in its wake, that the plain language of the criterion does not include any requirement that the leading role be significant, and that agency and AAO decisions which have been made on this point do not support it. Also, as with all of the criteria, it is important to keep in mind that the criterion may be met, but Final Merits Determination will require the tougher job of showing that the petitioner is at the top of his field and has national or international acclaim when the evidence is looked at as a whole. Letters, inasmuch as is possible, should make both of those points absolutely clear, using documents where necessary to show the national or international nature of the leadership.

     

    If your petitioner is not inclined to be a leader of men, but is still extraordinary, then what? Well, then it is time to explore his “critical condition”. Tune in next post!


    About The Author

    Coane and Associates is a full-service general practice firm. We regularly represent clients in employment and labor law, as well as immigration law. Our other areas of practice include litigation, appeals, personal injury, state and federal administrative proceedings, business and commercial law, school law, family law, contracts and other general civil matters. Our practice is both nationwide and international. We have represented or consulted with clients from all fifty states and more than one hundred countries. We represent clients before government agencies and various courts throughout the United States. We have the capability and experience of associating with co-counsel throughout the United States and throughout the world, where necessary. Matt Gaffron and Bruce Coane are Houston Immigration Lawyers working at the law firm of Coane and Associates, PLLC in Houston, Texas. Matt Gaffron and Bruce Coane jointly wrote this article.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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