This post is Part 1 of a series which will deal with a very troubling issue with potentially wide ramifications and Constitutional implications; namely the extent, if any, to which USCIS has the power to reopen and revoke previously approved petitions without any new information, evidence or adequate explanation. It will also deal with a particularly disturbing feature of this abuse of power, namely that fact that it is being used as a weapon against the best and brightest immigrants, those whom America should be trying most of all to attract and keep in this country.

With all the controversy about whether to grant legalization for 11 million less skilled and educated immigrants, it is sometimes easy to forget the fierce hostility which many of our immigration officials are showing toward the most talented and accomplished immigrants of all, namely those with extraordinary ability in the arts, science, business or athletics.

The USCIS Texas Service Center is apparently doing its best to lead the pack in turning away the best and the brightest from America, and encouraging them to find some other, more welcoming country, to benefit from their skills.

By way of introduction, these highly talented and accomplished individuals can apply either for the temporary (nonimmigrant) O-1 visa, or the permanent (green card) EB-1 category. Neither of these categories are easy ones in which to have petitions approved.

Without going into all the details of the requirements for extraordinary ability petitions, which are available on both the official USCIS website and numerous other websites (not to mention authoritative articles), both the O-1 and EB-1 categories require that the typical (i.e. non-Nobel Prize winner) person seeking classification must have met at least three out of a list of requirements, which are being interpreted in an increasingly restrictive manner.

These requirements include such items as exhibition or publication of one's work, material written about one's work in trade or professional journals, membership in organizations requiring outstanding achievement of their members, original contributions to the field which have had a major impact, or other evidence of recognition and acclaim as listed in the applicable regulations.

Meeting at least three of these requirements will usually be enough to gain O-1 approval. However, for the EB-1 extraordinary ability green card, meeting three of the applicable requirements is only the threshold test.

After that, the applicant is required, in connection with the second step in a "two part analysis" (set forth in Kazarian v. USCIS, 9th Circuit, 2010) to show that he or she has received "sustained national or international acclaim" and, even more difficult to achieve, is "one of that small percentage who has reached the very top of the field of endeavor".

An applicant in this demanding category might think that after convincing immigration examiners that one had qualified for an EB-1 green card under this highly restrictive standard, and receiving EB-1 petition approval, he or she would be welcomed to the US as a permanent resident and appreciated for choosing this country to practice his or her extraordinary skills in.

But that is not, apparently, the policy of the USCIS Texas Service Center. Instead, the TSC seems to believe that once someone has been approved for EB-1 extraordinary ability, the next step should be to wait nearly two years (making it all the more difficult to locate and contact people or organizations which provided evidence of the applicant's extraordinary ability the first time around), and then, without any new information about the person's qualifications or change in the law that would call the original approval into question, reopen the case and revoke the original approval.

This is exactly the situation that one of my clients, an extraordinarily talented and accomplished jewelry designer from Japan, who was originally approved for EB-1 by the TSC in February 2012, almost two years years ago, now finds herself in. In October, 2013, some 20 months after her I-140 petition approval. she received a Notice of Intent to Revoke her approved petition (NOIR) from the TSC.

The NOIR did not point to any alleged mistake of fact or new evidence that would have cast doubt on the original approval. Instead it sought, in effect, to re-litigate the entire petition based on the same evidence (amounting to about 250 pages of material) which had led to the original approval.

By way of disclosure, I did not represent the client in connection with the initial approval. While she had an attorney in that case, she also took an active role in gathering and submitting evidence of her extraordinary ability herself, including responding to a detailed and not overly-friendly RFE. In my opinion, she did an excellent job, and the TSC at that time obviously agreed, or her petition (which she filed on her own behalf) would not have been approved.

It is not my purpose at this point to go into details about my client's evidence of extraordinary ability, sustained international recognition and standing at the very top of her particular area of the jewelry design field. Suffice it to say that the evidence she submitted was abundant, and highly persuasive.

But the issue raised by the TSC's reopening of a previously approved EB-1 petition without any explanation other than, to paraphrase the NOIR simply because it could (in its view), is a much broader and troubling one than merely deciding whether the evidence justified approving a particular I-140 petition.

The TSC's action calls into question whether any immigration benefit applicant with an approved petition is now safe from having the petition suddenly reopened without explanation and, very possibly, revoked.

As mentioned at the beginning of this comment, it also raises the question whether the best and the brightest people are welcome in America any longer, according to the political priorities of the Obama administration.

In my next post, I will look further into the decisions that the Texas Service Center cited as authority for reopening the approved EB-1 petition and show that they were either totally irrelevant, or, with respect to one decision cited in the NOIR, amounted to a powerful argument against reopening the approved petition or issuing an NOIR in this well documented and clearly meritorious case.

It will become apparent as this discussion proceeds, that the TSC, far from having unfettered authority to reopen or revoke any approved petition it wants to for any reason it chooses, or for what amounts to no reason at all, is bound by long standing and well defined INS and USCIS policy concerning the requirements for issuing an NOIR, and that the TSC is showing as little regard for these standards as it is for the evidence in this case itself. This evidence will also be discussed later in more detail.

To be continued.