dismissed EB-1A

dismissed EB-1A Case: Chinese Martial Arts

📅 Date unknown 👤 Individual 📂 Chinese Martial Arts

Decision Summary

The appeal was dismissed because the petitioner failed to establish eligibility under at least three of the ten regulatory criteria. While the director found the petitioner met the criteria for nationally recognized awards and for judging the work of others, the petitioner failed to prove eligibility for a third criterion, specifically membership in associations requiring outstanding achievement.

Criteria Discussed

Prizes Or Awards Judging Membership In Associations

Sign up free to download the original PDF

View Full Decision Text
(b)(6)
DATE: JUL 19 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construction s of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on aNotice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov /forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
}B_r?I 
i'--
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
WW\V.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
Discussion: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on January 25, 2013. The petitioner, who is also the beneficiary, appealed the decision with 
the Administrative Appeals Office (AAO) on February 27, 2013. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the athletics , specifically, 
as a Chinese martial artist, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined that the petitioner has not established 
the sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section§ 203(b )(l)(A)(i) of the 
Act; 8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a Notice of Appeal or Motion, Form I-290B, and online printouts 
relating to the which counsel previously filed in response to the 
director's Request for Evidence (RFE). Noting the director concluded that the petitioner meets the 
nationally or internationally recognized prizes or awards criterion under 8 C.P.R. § 204.5(h)(3)(i) 
and the participation as a judge of the work of others criterion under 8 C.P.R. § 204.5(h)(3)(iv), 
counsel asserts that the petitioner also meets the membership in associations which require 
outstanding achievements of their members criterion under 8 C.P.R. § 204.5(h)(3)(ii). Counsel does 
not challenge any other aspects of the director's adverse decision. 
For the reasons discussed below, the petitioner has not established his eligibility for the exclusive 
classification sought. Specifically, the petitioner has not submitted qualifying evidence under at 
least three of the ten regulatory criteria set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
As such, the petitioner has not demonstrated that he is one of the small percentage who are at the 
very top of the field and he has not sustained national or international acclaim. See 8 C.P.R. 
§§ 204.5(h)(2), (3). Accordingly, the AAO will dismiss the petitioner's appeal. 
I. THE LAW 
Section 203(b) of the Act states, in pertinent part, that: 
1. Priority workers. - Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(A) Aliens with extraordinary ability. -An alien is described in this subparagraph 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. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration and 
Naturalization Service (INS) have consistently 
recognized that Congress intended to set a very high 
standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 
101st Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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 regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement, that is a major, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld 
the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of the 
evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while users may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Kazarian, 596 F.3d at 1121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Kazarian, 
596 F.3d at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and (vi). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this case, the AAO affirms the 
director's finding that the petitioner has not satisfied the antecedent regulatory requirement of 
presenting at least three types of evidence under the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x), and 
he has not demonstrated that he is one of the small percentage who are at the very top of the field or 
has achieved sustained national or international acclaim. See 8 C.P.R. §§ 204.5(h) (2), (3). 
II. ANALYSIS 
A. Evidentiary Criteria2 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner can establish sustained national or 
international acclaim and that his achievements have been recognized in the field of endeavor by 
presenting evidence of a one-time achievement that is a major, internationally recognized award. In 
his September 6, 2011letter, initially filed in support of the petition, and in his July 25, 2012 letter, 
filed in response to the director's RFE, counsel asserted that the petitioner's 2006 first place finish in 
long fist at the _ _ qualifies as his receipt of 
a major, 
internationally recognized award. In his January 25, 2013 decision, however, the director concluded 
that the evidence in the record does not support counsel's assertion. 
On appeal, counsel does not specifically challenge the director's adverse finding as relating to the 
petitioner's receipt of a major, internationally recognized award. See 8 C.P.R. § 204.5(h)(3). 
Instead, counsel only challenges the director's adverse finding as relating to the membership in 
associations which require outstanding achievements of their members criterion under 8 C.F.R. 
§ 204.5(h)(3)(ii). Accordingly, the petitioner has abandoned this issue, as he has failed to raise it 
timely on appeal. Sepulveda v. United States Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the 
United States District Court found the plaintiffs claims to be abandoned as he failed to raise them 
on appeal to the AAO). As such, the petitioner must present at least three of the ten types of 
evidence under the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility 
requirements. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.P.R. § 204.5(h)(3)(i). 
In his January 25, 2013 decision, the director concluded that the petitioner has met this criterion. 
The AAO disagrees. The AAO conducts appellate review on a de novo basis and may deny a 
petition that fails to comply with the technical requirements of the law. See Spencer Enterprises, 
Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 
2003); see also Soltane v. Dep 't of Justice, 381 F.3d 143, 145-46 (3d Cir. 2004) (noting that the 
AAO conducts appellate review on a de novo basis). 
2 The petitioner does not claim that he meets the regulatory categories of evidence not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
The record contains a number of award certificates issued to the petitioner, including: (1) a 2006 first 
place finish in long fist at the _ _ (2) a 2008 second 
place finish in broadsword at the (3) a 2007 second place finish 
in weapons at the _ (4) a 2007 first place finish in "Stuff' at the 
(5) a 2006 first place finish in sparring sets at the 
(6) a 2006 first place finish in men's group long fist at the 
(7) a 2006 first place finish in men's group weapons at the 
(8) a 2005 first place finish in men's group traditional fist at the 
(9) a first place finish in long fist at the 
(10) a 2002 first place finish in fist Group at the 
(11) a 2002 second place finish in weapons group at the 
a 2002 first place finish in "Monkey Fist, 54kg level" at the 
(13) a 2002 first place finish in all-around at the 
(14) a first place finish in men's youth group broadsword at the 
; and (15) a second place finish in men's group C 
drunken fist and a first place finish in men's group C broadsword at the 
As an overall concern, the translator did not individually certify each translation; rather, the 
translator provided a blanket certification that did not list each translation the translator was 
certifying. Thus, the petitioner has not established that each translation is certified pursuant to 
8 C.F.R. § 103.2(b)(3). It is noted that the translation of the petitioner's first place finish at the 
lists a different date (August 30, 2006) than the original foreign 
language document (September 11, 2005). 
Regardless, the petitioner has provided insufficient evidence showing that any of the above awards 
constitute nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor. First, the petitioner has not shown that his first place finish in long fist at the 
constitutes his receipt of a nationally or internationally 
recognized prize or award for excellence. According to counsel's July 25, 2012 letter, "the 
is one of the most important and largest martial arts events 
in the world; it also represents the highest level of martial arts competitions in the world." Even 
assuming the second championship where the petitioner won his awards enjoyed the same 
recognition as the third championship, without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). Indeed, the record contains no evidence relating to who could enter the 
who decided the placements of the competitors or 
under what criteria the competitors were judged in the long fist event. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
The petitioner has provided online printouts relating to the 
The printouts do not specifically mention that long fist was an event. In addition, 
the petitioner submitted search results for the words "world," "traditional," "Wushu" and 
"championships" from www.google.com. While the documents show 1,210,000 results, the 
petitioner did not provide the complete content for any result; thus, the petitioner has not established 
the context of the webpages that include the above words to establish that they demonstrate that the 
field nationally or internationally recognizes awards in long fist from the 
Moreover, several results are from YouTube. The petitioner has not 
established that the posting of videos on this website is indicative of recognition in the field. Finally, 
as the petitioner searched for the words rather than the phrase, not all results pertain to this event. 
Accordingly, the petitioner has not provided sufficient evidence showing that placing first in long 
fist in this particular event constitutes a nationally or internationally recognized prize or award for 
excellence. Regardless, this award is one award. The regulation requires evidence of qualifying 
awards in the plural. 
Second, the petitioner has provided insufficient evidence showing that any of his other awards 
constitute nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor. Counsel made the following assertions in his July 25, 2012 letter: (1) '' 
is one of the most important and largest martial arts competitions in 
China, if not in the world . . . . This tournament represents the highest level of martial arts 
competition in China"; (2) the "attracted martial [artists] 
around the world from nearly 30 countries and regions . 
. . Representatives of about 280 teams 
participated in this festival"; (3) the ' 
was organized by the 
attended by more than 800 professional martial 
. 
. . . The carnival was 
artists representing 32 teams"; and (4) the 
... is probably the most prestigious sports 
event at the local level in China .... Even though it is only a regional, rather than a national event, it 
still represents a relatively high level competition in Chinese martial arts." In his letter, counsel did 
not point to specific evidence in the record to support his assertions. As noted, without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 
17 I&N Dec. at 506. The petitioner did not submit any evidence in support of the above assertions. 
The record contains no evidence relating to who could enter any of these competitions, who decided 
the placements of the competitors in these competitions or under what criteria the competitors were 
judged in these competitions. Furthermore, even accepting counsel's assertions, the fact that the 
attracted a high number of competitors does not establish that the petitioner's 
accomplishments at these competitions constitute nationally or internationally recognized prizes or 
awards for excellence. At issue is not whether the pool of competitors was national or international 
but whether the field recognizes the awards at the national or international level. In addition, as 
counsel conceded that the is a regional 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
competitiOn, counsel has failed to show that the petitioner's accomplishments at this regional 
competition constitute nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor, as required 
by the plain language of the criterion. 
Ultimately, the petitioner has not demonstrated that his accomplishments at any of the competitions 
are recognized beyond the entities that organized the competitions through objective or independent 
evidence such as, but not limited to, media coverage of the competitions. 
Accordingly, the petitioner has not presented documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner 
has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(i). 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.P.R. § 204.5(h)(3)(ii). 
In his January 25, 2013 decision, the director concluded that the petitioner has not met this criterion. 
On appeal, counsel contends that the petitioner meets this criterion because he "was selected as a 
member of the " Although in his September 6, 2011 letter, 
counsel mentioned a membership certificate, the record lacks a copy of such membership 
certificate. As such, the petitioner has not provided sufficient evidence showing that he is a 
member. Moreover, according to the online printouts filed in response to the director's RFE and on 
appeal, "is a national non-governmental, nonprofit organization based in Beijing. It is the 
only legal organization that manages the sport of Wushu (martial arts) on a national scale. It consists 
of local marital arts associations in each JHOvince, autonomous region and major municipalities [sic] 
in China. It is also a member of the ' Neither these printouts nor any 
other evidence in the record specify membership requirements. In other words, assuming 
arguendo that the petitioner is a member, the record contains no evidence demonstrating that 
the requires outstanding achievements of its members, as judged by recognized national or 
international experts in their disciplines or fields, as required by the plain language of the criterion. 
In part 3 of the Form I-290B, counsel makes the following assertions: 
I members are highly selected professional martial artists throughout the 
nation in all fields of martial arts. The requires outstanding achievement in an 
area of martial arts as an essential condition for admission to membership. 
Membership in the is extremely selective, requiring members possess 
outstanding achievements in its field. The minimum requirements for membership 
are: at least 10 years of experience in the martial arts field and at least 3 medals at 
national or international martial arts competitions .... 
Counsel has not pointed to any specific evidence in the record to support his assertions. As noted, 
without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of 
Ramirez-Sanchez, 17 I&N Dec. at 506. In addition, merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d Cir. 1990); Avyr Associates, Inc. v. 
Meissner, No. 95 Civ. 10729, 1997 WL 188942 at *1, 5 (S.D.N.Y. Apr. 18, 1997). Similarly, 
USCIS need not accept primarily conclusory assertions. See 1756, Inc. v. United States Att'y Gen., 
745 F. Supp. 9, 17 (D.C. Dist. 1990). 
Furthermore, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ii) requires evidence of 
membership in qualifying associations, in the plural, consistent with the statutory requirement for 
extensive documentation. See section 203(b)(l)(A)(i) of the Act. As such, even if the petitioner's 
membership in CW A constitutes membership in one qualifying association, on appeal, counsel has 
not asserted or pointed to any evidence in the record showing that the petitioner is a member of a 
second qualifying association. See 8 C.P.R. § 204.5(h)(3)(ii). Although counsel stated in his 
September 6, 2011 and July 25, 2012 letters that the petitioner's certification as a fifth degree black 
belt from the International Wushu Sanshou Dao Association (IWSD) constitutes evidence of his 
membership in a second qualifying association, on appeal, counsel has not continued to make this 
assertion. As such, the petitioner has abandoned this issue, as he has failed to raise it timely on 
appeal. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. 
Accordingly, the petitioner has not presented documentation of his membership in associations in the 
field for which classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. The petitioner 
has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(ii). 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for which classification is sought. 8 C.P.R. 
§ 204.5(h)(3)(iv). 
In his January 25, 2013 decision, the director concluded that the petitioner has met this criterion. 
The record includes the following supporting evidence: (1) an April 11, 2009 
(2) a 
. and (3) a June 12, 2010 
Accordingly, the petitioner has presented evidence of his 
participation, either individually or on a panel, as a judge of the work of others in the same or an 
allied field of specification for which classification is sought. The petitioner has met this criterion. 
See 8 C.P.R.§ 204.5(h)(3)(iv). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
In his January 25, 2013 decision, the director concluded that the petitioner has not met this criterion. 
On appeal, counsel has not specifically challenged the director's adverse finding as relating to this 
criterion. Accordingly, the petitioner has abandoned this issue, as he has failed to raise it timely on 
appeal. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. 
B. The Petitioner's Field 
The petitioner has provided some evidence, including letters from martial arts practitioners, relating 
to the petitioner's abilities as a martial arts instructor or coach. A martial artist and a martial arts 
instructor or coach, while they certainly share some similar knowledge, rely on very different sets of 
basic skills. Thus, competitive athletics and coaching are not the same area of expertise. This 
interpretation has been upheld in federal court. In Lee v. INS, 237 F. Supp. 2d 914 (N.D. Ill. 2002), 
the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" 
as working in the same profession in which one has extraordinary ability, not 
necessarily in any profession in that field. For example, [the petitioner's] 
extraordinary ability as a baseball player does not imply that he also has extraordinary 
ability in all positions or professions in the baseball industry such as a manager, 
umpire or coach. 
Id. at 918. The court noted a consistent history in this area. In this case, the petitioner has not 
shown that he meets the regulatory requirements through achievements as a martial artist and has not 
claimed that he has submitted the required initial evidence as a martial arts instructor or coach. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory 
requirement of presenting three types of 
evidence in the field of endeavor, as required under the regulation at 8 C.F.R. § 204.5(h)(3). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the field of endeavor," and (2) "that the alien has sustained national or international 
acclaim and that his [] achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top 
of the field or sustained national or international acclaim, the AAO need not explain that conclusion 
in a final merits determination. 3 Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of presenting three types of evidence. Kazarian, 596 
F.3d at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. Dep 't of Justice, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as 
the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see also INA§§ 103(a)(1), 204(b); DHS 
Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of 
Aurelio, 19 l&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the 
jurisdiction to decide visa petitions). 
Using this case in a petition? Let MeritDraft draft the argument →

Avoid the mistakes that led to this denial

MeritDraft learns from dismissed cases so your petition avoids the same pitfalls. Get arguments built on winning precedents.

Avoid This in My Petition →

No credit card required. Generate your first petition draft in minutes.