dismissed EB-1A Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 12093133 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN . 29, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a business executive, seeks classification as an individual 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 as the record did not establish that the 
Petitioner had satisfied the initial evidence requirements for the requested classification. The Director 
further determined that the Petitioner had provided conflicting information to USCIS that was not 
resolved by her response to the notice of intent to revoke (NOIR). We affirmed the revocation of the 
previously approved petition and dismissed the Petitioner's appeal. The matter is now before us on a 
combined motion to reopen and motion to reconsider. 
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 l&N Dec. 715 
(BIA 1968); and Matter of Estime, 19 l&N Dec. 450, 452, n.1 (BIA 1987). Upon review, we will 
dismiss the combined motions. 
II. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must (1) state the reasons for reconsideration and establish that 
the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services 
(USCIS) policy, and (2) establish that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form l-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion. We cannot grant a motion that does not meet applicable requirements. See 
8 C.F.R. § 103.5(a)(4). 
II. LAW 
A. The Classification Sought 
Section 203(b)(1)(A) of the Act makes immigrant visas available to individuals with 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. 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). 
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 of Immigration 
Appeals has stated: 
In Matter of Estime ... , 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. 
Matter of Ho, 19 l&N Dec. 582, 590 (BIA 1988) (quoting Matter of Estime, 19 l&N Dec. at 452). 
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Ill. ANALYSIS 
The issue in this matter is whether the Petitioner has submitted new facts supported by documentary 
evidence sufficient to warrant reopening her appeal and/or established that our decision to dismiss the 
appeal was based on an incorrect application of law or USCIS policy. 
A. Prior AAO Decision 
We dismissed the Petitioner's appeal determining that although she established that she meets three of 
the initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), the totality of the evidence did not 
demonstrate her sustained national or international acclaim and that she is among the small percentage 
at the very top of her field of endeavor. In evaluating the evidence in the final merits determination, 
we weighed evidence related to the Petitioner's industry award, her leading position with the board of 
directors of I land evidence of other high-ranking corporate positions she held, the 
compensation she received for these positions, her published articles in journals related to business 
management, and her position on a journal's editorial board. We determined that the record 
established that she enjoyed a successful career in business in China·~ I province. However, we 
concluded that she did not establish by a preponderance of the evidence that she achieved sustained 
national or international acclaim in her field as required by section 203(b)(1)(A) of the Act, and was 
therefore not eligible for classification as an individual of extraordinary ability. 
In addition, we acknowledged that the Director had also revoked the approval of the petition, in part, 
based on a conclusion that the Petitioner had provided conflicting information to USCIS and the U.S. 
Department of State regarding her employment experience and salary which had not been fully 
resolved by her response to the NOIR. Because our determination that the Petitioner did not establish 
her eligibility for the requested classification was dispositive of the appeal, we reserved this separate 
issue and did not discuss it in detail. We did, however, acknowledge a claim by Petitioner's new 
counsel that any apparent discrepancies in the record were attributable to "negligence and inadequate 
representation by previous counsel" and "misrepresentation and fraud by an individual" who "posed 
as a US attorney." We observed that the allegations of ineffective assistance made on appeal were 
limited to new counsel's unsubstantiated claims about the conduct of prior counsel and his unlicensed 
associate. 
B. Motion to Reconsider 
The Petitioner's motion to reconsider is based on two allegations that USCIS misapplied the law to 
the facts of this case. First, the Petitioner asserts that the Director erred in determining that the record 
established that she met only two of the ten initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) 
and thus erred in revoking the approval of the petition. Specifically, the Petitioner contends that, since 
the Director determined in both the NOIR and the notice of revocation that the Petitioner met only two 
of these initial criteria, a "final merit[s] determination was not in the scope of the NOIR" and under 
Matter of Arias, 19 l&N Dec. 568 {BIA 1988), "the revocation could not have been made under a final 
merit[s] determination." The Petitioner requests that the Director "reconsider the revocation." 
The basis for the Director's revocation of the approved petition, and our decision to affirm that 
revocation, was that the Petitioner did not meet the statutory and regulatory eligibility requirements 
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for this classification at section 203(b)(1)(A) of the Act and 8 C.F.R. § 204.5(h)(2) and (3). As 
discussed above, the final merits determination is the second stage of the multi-part analysis set forth 
in Kazarian and involves a review of the totality of the evidence submitted in support the petition; it 
does not have separate evidentiary requirements. 
Here, the NOIR listed all ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3), explained the multi-part 
analysis and final merits determination that must be conducted if a petitioner meets at least three 
criteria, and advised that, under Kazarian, meeting the initial evidence requirement does not, in and 
of itself, establish that the individual has sustained national or international acclaim and is one of the 
small percentage who have risen to the very top of the field. The NOIR provided notice of this multi­
part analysis and did not erroneously advise the Petitioner that she would overcome the intended 
revocation simply by meeting one additional evidentiary criterion. 
Further, although we concluded upon de nova review of the record, including additional evidence and 
clarifications submitted on appeal, that the Petitioner met the criterion at 8 C.F.R. § 204.5(h)(3)(viii), 
we did not conclude that the Director's determination was in error based on the evidence before him 
at the time of the revocation decision. 
Based on the foregoing, our decision to affirm the revocation was not grounded upon factors that were 
outside the scope of the NOIR or the notice of revocation. The Petitioner's implied request that we 
remand the matter to the Director for further consideration will not be granted. 
The second argument that the Petitioner makes in support of her motion to reconsider is that the "AAO 
erred in the application of the final merits determination." The Petitioner specifically highlights our 
statement that "the Petitioner's apparent unemployment since 2015 diminishes her claim that she has 
sustained whatever acclaim she may have previously earned in business." However, the Petitioner has 
not explained how we misapplied the law or policy in considering the Petitioner's recent activities in 
the field in our evaluation of whether she has sustained acclaim at a level that places her among those 
at the very top of the field.1 The quoted language from our decision immediately followed a detailed 
discussion explaining why the totality of the evidence related to her industry award, corporate 
positions and compensation, published journal articles and other evidence from 2015 and years prior 
did not demonstrate that she had achieved national or international acclaim; the lack of recent evidence 
of her activities was not the deciding factor in our final merits determination. 
Rather than presenting a legal argument detailing how we misapplied law or policy in analyzing the 
final merits of her case, the Petitioner asks that we review a new affidavit in which she explains her 
recent activities in the United States and personal reasons for not pursuing full-time employment since 
2015. She also explains her financial situation, noting that she has considerable resources based on 
her position as "a highly successful businesswoman in the top of her field" who "was compensated 
accordingly." However, a motion to reconsider must establish that our decision was incorrect based 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADll-14 14 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (providing that "[i]f an alien was recognized for a 
particular achievement, [USCIS] should determine whether the alien continues to maintain a comparable level of acclaim 
in the field of expertise .... An alien may have achieved national or international acclaim in the past but then failed to 
maintain a comparable level of acclaim thereafter." 
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on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We 
do not consider new facts or evidence in a motion to reconsider. 
The Petitioner has not established that our decision to dismiss her appeal was based on an incorrect 
application of law or policy and that it was incorrect based on the evidence before us on appeal. 
Accordingly, the motion to reconsider will be dismissed. 
C. Motion to Reopen 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Here, the Petitioner 
states that she is seeking to reopen the matter based on the ineffective assistance she received from her 
former counsel,! land his associate,! lwho is not a licensed attorney. 
As a preliminary matter, we note that the Petitioner acknowledges that she retained the services of an 
individual! I who is not an attorney or accredited representative, albeit she states that she did 
so unknowingly. The Petitioner's ineffective assistance claim is primarily focused on actions taken 
by this individual. However, there is no remedy available for a petitioner who assumes the risk of 
authorizing an unlicensed attorney or unaccredited representative to undertake representations on its 
behalf. See 8 C.F.R. § 292.1; see also Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) 
("nonattorney immigration consultants simply lack the expertise and legal and professional duties to 
their clients that are the necessary preconditions for ineffective assistance of counsel claims"). 
However, as the record shows that the Petitioner was represented by an attorney who filed a Form G-
28, Notice of Entry of Appearance as Attorney, with the Form 1-140, we will consider her ineffective 
assistance claim. In a newly submitted affidavit, the Petitioner states that she met the named attorney, 
I Ion one occasion in September 2015 and had no further communication with him since 
that time.2 She nevertheless maintains that former counsel's representation was clearly deficient and 
prejudiced her case, emphasizing that "because of the unorganized, falsified and confusing evidence 
submitted by prior counsel," her credibility was in question in the notice of intent to revoke, the notice 
of revocation, and the AAO's decision. 
As we already discussed, we affirmed the Director's revocation of the approval and dismissed the 
appeal based solely on the merits of the Petitioner's extraordinary ability claim and a determination 
that the Petitioner did not establish that she has sustained national and international acclaim and that 
she is among the small percentage at the very top of the field. We reserved and did not discuss the 
issue of whether the record contained derogatory information or unresolved inconsistencies that would 
independently warrant revocation of the petition's approval. 
The specific discrepancies discussed in the "Derogatory information" section of the Director's 
decision focused on the Petitioner's employment history, specifically her exact job titles, dates and 
locations of employment with~-----~ and the sources of her income as reflected in her 
2 We note that~-----------~· is named along with ~------___,...... on the 
representation agreement the Petitioner signed in September 2015. The provided copy of the agreement does not include 
his sig?ati,re and the Petitioner does not claim that she paidl I or his firm; she states that she directly paid0 
Dofl I 
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Chinese tax documentation. The Petitioner states in her affidavit that the NOIR response included an 
"inaccurate description of [her] work and income" as a result of ineffective assistance that prejudiced 
her case. However, a review of our decision reflects that these factors did not prejudice her case at 
the appeal stage. If we doubted the credibility of the evidence relating to her prior employment and 
salary, we would not have determined that she served in a leading role withl lor that 
she received compensation commensurate with her "important positions at L..J and other 
companies." 
We did express a concern with current counsel's contention that certain evidence was prepared by the 
Petitioner's previous representative without her full participation and awareness, and that she may 
have signed documents she did not fully understand based on her limited English language 
comprehension. For example, we noted that she signed the Form 1-140 and attested to the accuracy 
of the information provided, although the petition indicated her residential address was in Delaware 
when in fact she resided in California. This was not a substantive issue that influenced our evaluation 
of her eligibility for this classification, as we concluded that she provided sufficient credible, probative 
evidence to establish that she met at least three of the evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). Accordingly, the Petitioner has not established that the outcome of her appeal was impacted by 
the claimed ineffective assistance of former counsel. 
Finally, the Petitioner has not stated the new facts to be provided in a reopened proceeding that would 
overcome our determination that she did not establish her eligibility as an individual of extraordinary 
ability pursuant to section 203(b)(1)(A) of the Act and 8 C.F.R. § 204.5(h)(2) and (3). The only new 
facts provided on motion that directly address the basis for dismissal of the appeal, as noted above, 
relate to her activities subsequent to her arrival to the United States in 2015. As noted, the Petitioner 
provides new information explaining why she has not been employed full-time since leaving her last 
position abroad. However, the information provided in her affidavit does not overcome our 
determination that she did not establish that she achieved sustained national or international acclaim 
in the years prior to 2015 or provide sufficient grounds for reopening the appeal. Accordingly, the 
motion to reopen will be dismissed. 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
of our previous decision or otherwise established eligibility for the immigration benefit sought. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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