dismissed EB-1A Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re : 7723069 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a business executive , seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S .C. § 1153(b)(l)(A) . This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation . 
The Director of the Texas Service Center approved the petition , but later revoked that approval on 
notice , under the provisions of section 205 of the Act , 8 U.S.C. § 1155 , and 8 C.F.R. § 205.2 . The 
Director concluded that the petition had been approved in error , and that the Petitioner had provided 
conflicting information to U.S. Citizenship and Immigration Services (USCIS). The Director 
determined that the record did not establish that the Petitioner had satisfied at least three of ten initial 
evidentiary criteria, as required . The matter is now before us on appeal. 
The burden of proof to establish eligibility for the benefit sought remains with the petitioner in 
revocation proceedings . Section 291 of the Act, 8 U.S .C. § 1361; Matter of Cheung, 12 I&N Dec . 715 
(BIA 1968) ; and Matt er of Es time, 19 l&N Dec. 450 , 452, n.1 (BIA 1987). Upon de nova review , we 
will dismiss the appeal. 
I. LAW 
A. The Classification Sought 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to aliens with extraordinary ability 
if: 
(i) the alien has extraordinary ability in the sciences , arts , education , business , or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation , 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of their achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
they must provide sufficient qualifying documentation that meets at least three of the ten categories 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain 
media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
B. Revocation of an Approved Petition 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he deems 
to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. 
Such revocation shall be effective as of the date of approval of any such petition." 
Regarding the revocation of an immigrant petition under section 205 of the Act, the Board oflmmigration 
Appeals has stated: 
In Matter of Es time ... , this Board stated that a notice of intention to revoke a visa petition 
is properly issued for "good and sufficient cause" where the evidence of record at the time 
the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa 
petition based upon the petitioner's failure to meet his burden of proof The decision to 
revoke will be sustained where the evidence of record at the time the decision is rendered, 
including any evidence or explanation submitted by the petitioner in rebuttal to the notice 
of intention to revoke, would warrant such denial. 
2 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( quoting Matter of Estime, 19 I&N Dec. at 452). 
II. ANALYSIS 
Prior to her 2015 entry into the United States as an F-1 nonimmigrant student, the Petitioner was 
deputy general manager and board secretary of.__ ______ _. The Petitioner does not claim any 
subsequent employment in the United States. At the time of filing, the Petitioner was studying for a 
master's degree in accounting, and she indicated that she was on a leave of absence froml I The 
Petitioner indicates that she plans to work as a consultant to thd I industry. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner initially claimed to have met six criteria, summarized 
below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iv), Participation as a judge of the work of others; 
• (vi), Authorship of scholarly articles; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director found that the Petitioner met only two of the evidentiary criteria, numbered (iv) and (vi). 
On appeal, the Petitioner asserts that she also meets the evidentiary criteria numbered (i), (viii), and 
(ix). After reviewing all of the evidence in the record, we find that the Petitioner has met the two 
criteria granted by the Director, and a third criterion. 
The criterion at 8 C.F.R. § 204.5(h)(3)(viii) calls for evidence that the alien has performed in a leading 
or critical role for organizations or establishments that have a distinguished reputation. The record 
establishes thatl I has a distinguished reputation as a major company in its field, and 
that the Petitioner performed in a leading or critical role for the company as a member of its board of 
directors. 
As the Petitioner has demonstrated that she satisfies three criteria, we need not individually discuss 
the additional claimed criteria. We will evaluate the totality of the evidence in the context of the final 
merits determination below. 
B. Final Merits Determination 
As the Petitioner submitted the reqms1te initial evidence, we will evaluate whether she has 
demonstrated, by a preponderance of the evidence, her sustained national or international acclaim and 
that she is one of the small percentage at the very top of the field of endeavor, and that her 
achievements have been recognized in the field through extensive documentation. In a final merits 
3 
determination, we analyze a petitioner's accomplishments and weigh the totality of the evidence to 
determine if their successes are sufficient to demonstrate that they have extraordinary ability in the 
field of endeavor. See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also 
Kazarian, 596 F.3d at 1119-20. 1 In this matter, we determine that the Petitioner has not shown her 
eligibility. 
Complicating our consideration of the record, the Petitioner, through her current attorney of record, 
does not folly endorse the evidence submitted prior to the appeal. As we will farther discuss below, 
present counsel contends that the evidence was prepared without the Petitioner's foll participation and 
awareness, and that the Petitioner signed documents that she did not understand because of her limited 
comprehension of English. (As one example, the petition form shows a residential address in 
I I Delaware. On appeal, present counsel asserts that the Petitioner has never lived in 
Delaware.) A petitioner's signature on the petition form is an attestation, under penalty of perjury, 
that the submitted evidence is true and correct. Present counsel's attempts to qualify this attestation 
necessarily reduce our confidence in the evidence submitted. 
This vague, partial disavowal of prior submissions is of particular concern with regard to certain claims 
that are supported only by English-language letters written specifically to support the petition, rather 
than objective documentation. 
The Petitioner held a high-ranking position at a major company, but her title and responsibility do not 
necessarily translate into acclaim or place her at the top of her field. ~ chairman states that the 
Petitioner "was a super star among board secretaries, especially inc=J Province." The statute 
requires sustained national or international acclaim. Recognition at the provincial level does not meet 
this threshold. 
Shanghai Securities News gave the Petitioner a 'I !Award" as one of25 "Outstanding 
I I of Listed Companies" in 2009. 2 Later, the Petitioner served on the selection 
committee for another award from that publication in 2012. Shanghai is outside! !Province, and 
thus honors from a Shanghai newspaper can indicate recognition beyond the provincial level, but the 
record does not show the significance of the I IA ward. As noted, the paper named 
25 winners of the same award, and a printout from the paper shows dozens of recipients of other 
awards such as the "Investor Relations Award" and the "Information Disclosure Award." Information 
about the reputation and circulation of Shanghai Securities News does not directly establish the 
significance of awards from that publication. 
1 See also USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form T-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADl 1-14 4 (Dec. 22, 2010), 
https://www.uscis.gov/legal-resources/policy-memoranda (stating that USCTS officers should then evaluate the evidence 
together when considering the petition in its entirety to determine if the petitioner has established, by a preponderance of 
the evidence, the required high level of expertise for the immigrant classification). 
2 Questions arise from background information submitted with the petition, indicating that a board secretary is not ~ligible I 
for the award if "his/her employment with the company is less than 2 years." The Petitioner's employment wit 
began in 2009, the same year for which she won the award. 
4 
The record indicates that the Petitioner served in important positions atc=Jand at other companies, 
and was compensated accordingly, but it does not show that this work translated to sustained national 
or international acclaim. High-ranking corporate positions are a favorable factor but are not 
presumptive evidence that the Petitioner is among the small percentage at the very top of the field. 
The Petitioner has written published scholarly articles in journals relating to business management, 
but the record does not establish that these articles have had a significant impact (for instance, by 
widely influencing and improving management practices). The Petitioner served on a journal's 
editorial board, but the record does not show that this position either resulted from, or contributed to, 
acclaim in the field. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). By the same logic, 
a high-ranking position at a large company does not result in a presumption of eligibility. Here, the 
Petitioner has not shown the required sustained national or international acclaim or established a 
"career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 
(Sept. 19, 1990); see also section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Petitioner has garnered national or international acclaim in the field, and that she 
is one of the small percentage who has risen to the very top of the field of endeavor. See section 
203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). The record indicates that the Petitioner had a 
successful career in business in Hunan Province, but the evidence is not sufficient to place her among 
the small percentage at the very top of her field. 
Furthermore, the Petitioner's apparent unemployment since 2015 diminishes her claim that she has 
sustained whatever acclaim she may have previously earned in business. 
C. Derogatory Information 
In addition to issues regarding the regulatory criteria at 8 C.F.R. § 204.5(h)(3), the Director found that 
the Petitioner provided conflicting information to USCIS and the U.S. Department of State regarding 
her experience and salary. The Director did not make a finding that the Petitioner committed fraud or 
willfully misrepresented material facts. Rather, the Director found that the Petitioner's conflicting 
assertions undermined her credibility. See Ho, 19 I&N Dec. at 591. 
Because we have already concluded that the Petitioner has not established sustained national or 
international acclaim, as required, detailed discussion of this additional issue cannot change the 
outcome of this appeal. Therefore, we reserve this issue and need not discuss the details here. 
We will note, however, that the Petitioner attributes any apparent discrepancies to "negligence and 
inadequate representation by previous counsel," as well as "misrepresentation and fraud by an 
individual" who "posed as a US attorney." 
5 
The Board of Immigration Appeals established a framework for asserting and assessing claims of 
ineffective assistance of counsel. See Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988), aff'd, 857 F .2d 
10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should provide 
a detailed description of the agreement with former counsel (i.e., the specific actions that 
counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective assistance 
and was given an opportunity to respond. Any response by prior counsel ( or report of former 
counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate disciplinary 
authorities ( e.g., with a state bar association) or an explanation why the petitioner did not file 
a complaint. 
Id. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. Id. 
Allowing former counsel to present their version of events discourages baseless allegations, and the 
requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with their client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). 
In this instance, the Petitioner has not met any of the above conditions ( and the appeal includes no 
explicit reference to Lozada). The appeal includes a statement from the Petitioner's new attorney, but 
no affidavit from the Petitioner herself. New counsel states his intention to file a complaint, but the 
record does not show that any complaint has been filed. New counsel does not say whether or not he 
has advised prior counsel of the allegations of misconduct. 
Absent the required elements of a Lozada claim, we are left with new counsel's unsubstantiated claims 
about the conduct of prior counsel and his associate. Unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
III. CONCLUSION 
The revocation of the previously approved petition is affirmed for the above stated reasons. The 
burden of proof to establish eligibility for the benefit sought remains with the petitioner in revocation 
G 
proceedings. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Cheung, 12 l&N Dec. 715 (BIA 
1968); and Matter of Estime, 19 l&N Dec. at 452, n. l (BIA 1987). The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
7