dismissed EB-1A Case: Tax Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 20211842 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 29, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a tax accountant, 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 denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is an individual in the 
small percentage at the very top of the field. We dismissed the Petitioner's appeal from the Director's 
decision. The matter is now before us on a combined motion to reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion . 
I. LAW 
Section 203(b )(l)(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; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose 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 international recognition of his or her 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 he or she must provide sufficient qualifying documentation that meets at least three of 
the ten criteria 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 the initial evidence requirements through either a one-time achievement or 
meeting three lesser criteria, 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); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. MOTION REQUIREMENTS 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be suppmted 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
state the reasons forreconsideration and establish thatthe decision was incorrect based on the evidence 
of record at the time of the initial decision. 8 C.F.R. § I 03.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
Under the above regulations, a motion to reopen is based on documentary evidence of new.facts, and 
a motion to reconsider is based on an incorrect application of law or policy. We may grant a motion 
that satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
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 reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements ( such as submission of 
a properly completed Form I-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). 
III. ANALYSIS 
From 198 7 to 19 8 9, the Petitioner worked as an international tax associate atl I in I I California. Since 1989, the Petitioner has worked for an affiliate of I I China, where he is now vice chair and international tax 
partner. The Petitioner filed the petition in May 2019. Since that time, he has periodically entered the 
United States as either an F-1 nonimmigrant student or a B-2 nonimmigrant visitor, but he continues 
to reside primarily inl I 
Because the Petitioner has not indicated or shown that he received a major, internationally recognized 
award, he 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 satisfied six of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (vi), Authorship of scholarly articles; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
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• (ix), High remuneration for services. 
The Director concluded that the Petitioner met the criteria relating to published materials about him, 
authorship of scholarly articles, and leading or critical roles. In our appellate decision, we concluded 
that the Petitioner had met the criteria relating to authorship of scholarly articles, leading or critical 
roles, and high remuneration. 
Because we determined that the Petitioner had submitted the required initial evidence, we proceeded 
to a final merits determination to evaluate whether he has demonstrated, by a preponderance of the 
evidence, his sustained national or international acclaim and that he is one of the small percentage at 
the very top of the field of endeavor, and that his achievements have been recognized in the field 
through extensive documentation. In a final merits determination, we analyze a petitioner's 
accomplishments and weigh the totality of the evidence to detem1ine if their successes are sufficient 
to demonstrate that they have extraordinary ability in the field of endeavor. See section203 (b )(1 )(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 our appellate decision, we determined that the Petitioner has not established eligibility. 
A. Motion to Reopen 
In his motion to reopen, the Petitioner submits new evidence by which he seeks to augment the 
evidence he had previously submitted in order to satisfy the threshold criteria at 8 C.F.R. § 204.5(h)(3). 
For the reasons explained below, we conclude that the Petitioner has not shown proper cause to reopen 
the proceeding. 
In our dismissal decision, we acknowledged the Petitioner's high-ranking position atl I but 
concluded that the Petitioner's evidence is "not sufficient to demonstrate how this work has elevated his 
status within the broader field of business, or his specialization in taxation." 
On motion, the Petitioner submits letters from two retired! I executives. One of these 
individuals, a former international tax partner, briefly worked directly with the Petitioner, and afte1ward 
consulted him for advice regarding I tax matters." This individual asserts that the Petitioner 
reached "the highest levels of management and responsibility withinl I but provides few 
details and does not establish that the Petitioner earned recognition outsidd I 
former chief executive officer (CEO) states that by 2010 the Petitioner "was clearly 
established as premier expe1i on all tax matters involved in U.S.-China business 
transactions. In addition, he was recognized broadly as one of the best international tax practitioners 
globally, as evidenced by his twice being named a 'Leading Individual in Taxation' by the International 
Tax Review." Noting that the Petitioner wrote articles and sat for "interviews with a wide variety of 
media," the former CEO also asserted that these "activities were by invitation based on recognition of his 
expertise by the industry ... and those invited must have arrived at the summit of their profession." 
1 See also 6 USCIS Policy ManualF.2(B)(2), https://www.uscis.gov/policymanual (stating that USCIS 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 fortheirnmigrant classification). 
3 
The record does not support the claim that International Tax Review (ITR) named the Petitioner as a 
"Leading Individual in Taxation." In our prior decision, we stated: "the evidence showing that the 
Petitioner was named as one of several tax experts in in International Tax Review's 'World 
Tax Rankings' in 2009 does not set him apart from others so named, or from those taxation experts who 
work in other parts of the w011d." 
On motion, the Petitioner does not identify any published material fromITR in the record that names the 
Petitioner as a "Leading Individual in Taxation." An email messa e from ITR's commercial editor 
indicates that the Petitioner "was profiled as part of leadership profile in 
International Tax Review's World Tax rankings fo ___ in 2009." Those rankings pertained to 
firms rather than individuals. The Petitioner's initial submission included a four-pageprintoutfrom those 
rankings, which identifier-7as one of fivel I tax firms in I Within that printout, 
a two-paragraph profile of names three company officials and states that the Petitioner is one of 
two officials who "are regularly involved in discussions with government bodies for the development and 
interpretation of new rules and regulations." The document does not refer to the Petitioner as a "Leading 
Individual in Taxation" or present itself as a ranking of such individuals. 2 
The undocumented claim about ITR' s World Tax rankings influences our conclusions about the overall 
reliability of the newly submitted letter. Where an opinion is not in accord with other information or is 
in any way questionable, we are not required to accept or may give less weight to that evidence. Matter 
of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). We must view in this light of the former 
CEO's uncorroborated assertions about the significance of the Petitioner's interviews and authorship of 
articles. The record does not contain statements from the media outlets that interviewed the Petitioner, or 
the publishers of outlets that carried his articles, indicating selection of authors or interviewees based on 
an individual's high ranking in their field. 
The record likewise lacks support for the Petitioner's assertion on motion that his "recognition in the field 
is further validated by the fact that he was invited to serve as a member of the Taxation Committee of 
I I General Chamber of Commerce"! l The evidence of the Petitioner's committee 
service consists of a previously submitted letter from a deputy CEO of the I I who confinned that 
the Petitioner was a "member of good standing with the Committee" from 2004 to 2010. The Petitioner 
did not submit evidence to show the requirements for committee membership or otherwise provide details 
as to how the Petitioner joined the committee and the significance of that membership. The letter points 
to the Petitioner's local prominence in the I financial community, without establishing wider 
recognition at the national or international level that the statute and regulations demand. 
The Petitioner submits copies of three "recent articles in which the Petitioner was interviewed and quoted 
regarding different important business issues." The Petitioner asserts that these articles illustrate "his own 
status as a tax expert in the business field." 
2 The Petitioner had originally claimed that this brief mention in ITR's World Tax rankings constitutes "an award for 
excellence in the field of taxation." The Director concluded that the Petitioner had not shown his receipt of any award, 
and the Petitioner did not pursue the claim on appeal. 
4 
A 2015 article from Forbes mentions the Petitioner once, but there is no indication that Forbes 
interviewed him directly. Instead, the article refers to a quotation that had already appeared in another 
publication, stating that the Petitioner "told the South China Morning Post that tax authorities will 
especially be looking at outbound service payments." A 2020 article from Asian Investor includes 
comments from the Petitioner concerning the possible impact on U.S. investors of a newlypassed security 
law. Neither of these articles focuses on the Petitioner. We note that the Asian Investor article was 
published after the petition's filing date in 2019 and therefore could not establish eligibility as of the filing 
date required by 8 C.F.R. § 103 .2(b )(1 ). 
A 2018 article in Diplomat features an interview with the Petitioner, discussing infrastructure investment. 
The article provides the Petitioner's title and indicates that lis one of the world'sl I 
accounting fim1s," but does not refer to the Petitioner as a leading or acclaimed figure in his field or state 
that he was selected for the interview based on acclaim or recognition. 
The three newly submitted articles identify the Petitioner as a source of information and opinions in his 
area of expertise, but the Petitioner has not shown that these articles demonstrate national or international 
acclaim or recognition at the top of his field. 
Discussed separately from the above articles, the Petitioner submits two articles relating to I I 
provision oflegal services in I and elsewhere in China. One of the articles quotes the Petitioner 
at some length in his capacity as the senior international advisor for the firm in China; the other article 
mentions him more briefly regarding the establishment of the firm inl I 
The Petitioner also submits a press release from I own website, indicating that the Petitioner 
"was invited to speak on a private wealth panel" at a government-organized event in May 2021. The 
Petitioner does not establish that this event attracted media attention outside! lown promotional 
materials. Also, the event occurred two yearsafterthepetition'sMay 2019filingdate and therefore could 
not establish eligibility as of the filing date, even if the Petitioner had submitted evidence of the 
significance of the event. This invitation is one of several pieces of evidence that deals with the 
Petitioner's high-ranking position atl I This high rank satisfies the threshold criterion at 
8 C.F .R. § 2 04 .5(h X3)(viii), as a leading role for an organization that has a distinguished reputation. But 
the Petitioner has not shown that this high rank has translated to individual recognition and acclaim for 
himself. 3 
In addition to articles mentioning the Petitioner, the record also contains articles written by the Petitioner. 
In our decision dismissing the Petitioner's appeal, we acknowledged the Petitioner's authorship of 
scholarly articles, but determined that the Petitioner had not shown that the articles "set him apart from 
his co-authors and others" in the field who also publish scholarly articles. We also observed that the 
Petitioner had not established the "influence or reach" of the publications that carried the articles. We 
concluded, as a result, that "the Petitioner's published work does not rise to [the] level" of "extensive 
documentation ofrecognition in [his] field." 
3 The distinction is of particular significance because the Petitioner does not intend to work directly forl I in the 
United States. Rather, he stated that he intends "to set up a boutique tax consulting firm" for certain clients with business 
interests in the United States and China, and "may continue to be associated with I lin a consulting relationship." 
5 
On motion, the Petitioner submits evidence to establish that some of the publications that have carried his 
articles have significant circulation and readership. These materials, however, do not address the larger 
question how the articles "set [the Petitioner] apart from his co-authors and others" who have published 
such articles in the field. 
We note that circulation figures factor into initial consideration of scholarly articles as a threshold criterion 
at 8 C.F.R. § 204.5(h)(3)(vi). See 6 USCJS Policy Manual F.2 appendix, https://www.uscis.gov/policy­
manual. In our prior decision, we agreed with the Director that the Petitioner had satisfied that criterion. 
But evidence that satisfies the initial threshold criteria does not necessarily show sustained national or 
international acclaim. The Petitioner has not shown that the publishers invited him to write articles based 
on such acclaim, or that he derived acclaim from the reception of the articles upon their publication. 
The Petitioner addresses another threshold criterion that we had already granted, concerning high salary 
or other significantly high remuneration under 8 C.F.R. § 204.5(h)(3)(ix). The Petitioner submits a 
statement fro land background evidence indicating that he earned a high salary from2013 
to 2020, whereas his earlier evidence covered a shorter span from 2018 to 2019. As with the circulation 
figures above, the new evidence is relevant to the proceeding, but it does not suffice to shift the overall 
calculus of the final merits determination in the Petitioner's favor and demonstrate sustained national or 
international acclaim. The Petitioner's new evidence submitted does not consistently show a level of 
recognition outside of I that reaches the level of sustained national and international acclaim. 
Because the newly submitted evidence does not establish eligibility, we will dismiss the motion to reopen. 
B. Motion to Reconsider 
A motion to reconsider must establish that the prior decision was based on an incorrect application of law 
or policy, and was incorrect based on the record at the time of that decision. 8 C.F.R. § 103.5(a)(3). In 
the present motion, the Petitioner identifies only one claimed error. 
In our dismissal notice, we noted the Petitioner's "long-time service with the Young Men's Christian 
Association of in several roles, most recently as its Chairman of the Board and 
President," but we observed that "the Petitioner does not suggest or establish that this work has brought 
him acclaim in the international tax community, or that any recognition for this work extends beyond the 
I On motion, the Petitioner states that "requiring Petitioner's leading role to extend beyond 
thel I is overreach, and thus, and incorrect application oflaw." The Petitioner states that the 
criterion at 8 C.F.R. § 204.5(h)(3)(viii) "only requires evidence that Petitioner has performed a leading 
role in an organization with a distinguished reputation, and nothing more. It is not an oversight that 'in 
the field' is not written into this criterion when all 9 other criteria contain a 'field' limitation." The 
Petitioner therefore asserts that we "impose[d an] additional evidentiary requirement" that the leading 
role relate to the Petitioner's field. 
We emphasize that, in the denial notice, the Director cited the Petitioner's position atl I and 
granted that the Petitioner had met the requirements of 8 C.F.R. § 204.5(h)(3)(viii), and we agreed in our 
dismissal notice. Therefore, we imposed no additional evidentiary requirement within the context of that 
regulatory criterion. 
6 
But the final merits determination is not an aggregation of the threshold regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). Rather, as explained above, a final merits determination rests on consideration of the 
record as a whole. In the context of a final merits determination, we can consider factors outside the 
confines of the ten threshold criteria. See Kazarian, 596 F.3d at 1151, which recognizes that issues that 
"are not relevant to the antecedent procedural question" of the threshold criteria "might be relevant to the 
final merits determination of whether a petitioner is at the very top of his or her field of endeavor." When 
considering whether the Petitioner is at the very top of his field of endeavor, as required by 8 C.F.R. 
§ 204.5(h)(2), we cannot properly detemnne the weight to attribute to the Petitioner's activities outside 
that field when the Petitioner has not established their relevance. 
In our dismissal notice, we concluded that the Petitioner had not shown that his leadingroleat._l ___ 
"has brought him acclaim in the international tax community." The Petitioner, on motion, has not 
overcome or even disputed this conclusion. The burden is on the Petitioner to establish eligibility for the 
benefit he seeks, and to establish the relevance of the evidence submitted. The Petitioner has not 
explained how a leadership position atl I relates to sustained national or international acclaim 
in the field of tax accounting. 
The Petitioner has not identified any error oflaw or policy in our appellate decision, or established that 
the appellate decision was incorrect based on the record at the time of that decision. Therefore, th emotion 
does not meet the requirements of a motion to reconsider, and we must dismiss the motion. 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the grounds for dismissal of the appeal. We will therefore dismiss the motion 
to reopen and motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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