dismissed EB-1A Case: Trade Consultant

PUBLIC COPY 
U.S. ~e~s&ent of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
. 0 2/ 
IN RE: 
Ability Pursuant to Section 
203(b)(l)(A) of the ~mmigrationland Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
JNSTRUCTIONS: 
i 
' This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that ofice. 
. 
Robert P. Wiemann, Chief 
~drniniskative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(A), as an alien of extraordinary ability. The 
director determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
On appeal, counsel argues that the petitioner "meets the definition of extraordinary ability." 
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): 
(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 to the United States will substantially benefit prospectively the 
United States. 
As used in this section, the tenn "extraordinary ability" means a 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. 8 C.F.R. 
4 204.5(h)(2). The specific requirements for supporting documents to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. $204.5(h)(3): 
Initial evidence: A petition for an alien of extraordinary ability must be accompanied by evidence that 
the alien has sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement 
(that is, a major, international recognized award), or at least three of the following: 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) Published materials about the alien in professional or major trade publications or other major 
: 
 media, relating to the alien's work in the field for which classification is sought. Such evidence shall 
include the title, date, and author of the material, and any necessary translation; 
(iv) 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; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
1 
publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; 
(viii) EGidence that the alien has performed in a leading or critical role for organizations or, 
establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration 
for, services, in relation to others in the field; or 
, 
 (x) Evidence of commercial successes in the performing arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video s'aIes. 
This petition, filed on June 21,2005, seeks to classify the petitioner as an alien with extraordinary ability as a 
trade consultant. 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of 
which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner claims to meet the following criteria. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The petitioner submitted letters of support from a current .subordinate and two former governmental 
colleagues. 
Page 4 
, Vice PreSident, 
 states that he has known [the petitioner] for most 
of his career in the private sector. He further states: 
I was a Vice President offrom 1998 to the present under [the petitioner], who was 
the President. . . . Currently I am a safety, health and environmental consultant for a number of 
construction firms in the US. 
I can support everything that [the petitioner] has stated in his resume for the period 1998 to the 
present. He is an outstanding professional with unique ability to define major trade barriers; figuring 
out how to meet the administrative requirements of any given trade restriction (even when it is in 
another language); and ultimately succeeding in successllly representing our clients while achieving 
legally a minimal fiscal impact for the client. 
I was impressed with his ability to take arcane bureaucratic procedures/adrninistrative practices and 
articulate them into something that was understandable to corporate professionals. On more than one 
occasion, he collected up to 42 .different documenis for 6 different Brazilian bodies, 
coordinated each submission some on .a parallel basis, most sequentially. In one case, which I 
remember well he successfUlly cleared customs, with the assistance of an associate of his in Brazil, 
for an oil field drilling vessel in three business days, despite the fact that the Brazilian customs 
officials were on strike (i.e. a work slow down). The client was a major oil field supply company 
(OSCA). Further complicating the case was the fact that the vessel was brought into Brazil under 
REPETRO (a taxes and duties exemption program for oil field equipment), which made the 
paperwork and approvals even more onerous. This saved the client $8,500,000.00 in taxes and duties 
and was done completely legally. As [the petitioner] always says trade practices are in "mastering the 
details." 
[The petitioner] I am certain was a superior "trade law and policy expert" in the.public sector. It is a 
credit to his ability that he was able to re-engineer himself such that he became an expert consultant 
to the private sector looking as it were "through the other end of the telescope" at other countries 
"border barriers'' @ bLbureaucratic procedures and administrative practices" which affect the 
movement of oil and gas exploration and production equipment as well as the technicians who 
operate the equipment. He is a superior asset to the oil and gas industry in the U.S. - an expert with 
"extraordinary abilities." 
states that he "can support everythmg that [the 
 has stated in his resume for 
the period 1998 to the present," but the record includes no copy of the petitioner's resume. While the 
petitioner may have performed admirably on projects und&dn b 
 his ability to 
the field beyond his company's immediate projects as not een ernonstrated. m~ 
further states that the petitioner "is a superior asset to the oil and gas industry in the U.S.," 
but the record includes no letters of support from U.S. officials to corroborate his assertion. We accept that 
the petitioner has e-ed the respect of his subordinate, but the letter from is not 
adequate to demonstrate that the petitioner's past accomplishments rise to the level of a contribution of major 
significance in his field. 
- 
Page 5 
states that she knew [the petitioner] for most of his career in Canadian Public Service. 
I was his immediate supervisor from 1982 to 1985 while I was a Director in the Department of 
Finance. 
I can support everything that [the petitioner] has put in his resume for the period 1974 to 1987. He 
was an outstanding professional with a unique ability to isolate and define major economic problems 
facing Canada, subsequently arguing for policy corrections and pursuing and supporting those 
corrections through to their implementition (e.g. the Canada/U.S.A. Free Trade Agreement). 
[The petitioner's] analyt~cal skills and his ability as an advocate were borne out in the context of the 
Cabinet debate surrounding ratification of the Law of the Sea Treaty in 1984. Once again, in the face 
of formidable opposition, [the petitioner] persuaded then' Minister of Rnance, to 
oppose ratification by Canada on the basis of the interventionist nature of the treaty's resource 
exploitation provisions and its extratemtorial taxation provisions. [The petitioner] stood alone among 
colleagues and Ministers from other departments in his opposition to the treaty but was strongly 
supported by then Associate Deputy ~ihister of Finance. AAer the Minister of 
Finance's intervention in Cabinet, based on [the petitioner's] brief, Canada declined to ratify the Law 
of the Sea treaty. Moreover, Cgada did not ratify the treaty until November 7, 2003 after major 
changes consistent with the advice previously. offered by [the petitioner] had been made. 
[The petitioner] worked closely with the Right Honourable 
 early in his career in the 
De artrnent of Finance, before succeeded 
h was defeated in a general election by the Right Honourabl 
appointed Michael Wilson as his Finance Minister. 
analyst and as an advocate were once again proven when and his Cabinet colleagues 
adopted [the petitioner's] mantra on "forcing business to compete" and "getting bureaucrats out of the 
business of trying to do business." This approach was set out in the official government document 
entitled A New Direction for Canada: An Agenda for Economic Renewal. This in turn led to 
Canadian Government support for a Canada1U.S.A. Free Trade Agreement in spite of huge opposition 
at all levels in Canada. 
It is a credit to [the petitioner's] ability, not only as a "policy wonk" but also as an expert advisor that 
he was always able to accomplish what he set out to change. He was, and was seen to be, a superior 
asset to the Canadian Government - a true professional with "extraordinary abilities." 
[the petitioner] has put in his re$ 
lstates that she "can support everything that 
iurne," but as stated previously, the record includes no copy of the 
[assertion that the petitioner's brief resulted in Canada's 
L. 
I 
Page 6 
decision not to ratify the Law of the Sea treaty, there is no evidence of the brief to which she refers, nor is 
there supporting evidence demonstrating that the petitioner, rather than was 
the driving force behind Canada's opposition to the treaty. Further, it has not been established that the 
petitioner was the primary architect of Canadian trade policy as set forth in A New Direction or Canada: An 
Agenda for Economic Renewal. We note that this document bears the name o f Of 
Finance, rather than the petitioner's name. The record includes no contemporaneous evidence (such as media 
reports or policy memoranda) acknowledging the petitioner's individual contribution to this document or to 
Canadian trade policy in general. Section 203(b)(l)(A) of the Act, however, requires "extensive 
documentation" of sustained national acclaim. 
Thomas Shenstone, Director-General, Policy Planning and Integration, Agriculture and Agn-food Canada, 
states: 
I have known [the petitioner] since 1980 and was a colleague of his in the Department of Finance in 
Canada until his departure from Canada in 1987. 
I knew [the petitioner] fiom the time I joined the International Economic Relations Division of the 
Depaxtment of Finance (Canada's equivalent to the U.S. Treasury Department). He was already the 
Department's expert on International Commodity Agreements, and the Department led Canada's 
position on this issue (having successfully regained predominance over these issues). He also directed 
and managed Finance's input (critically important from a fiscal point of view at the time) into the 
determination of Defense, External Affairs, Trade Promotion and Aid finding levels. 
[The petitioner] was instrumental in persuading the Minister of Finance, 
 to block 
Canada's ratification of the Law of the Sea Treaty because of its seabed mining provisions and other 
extra-territorial provisions. He did an in-depth analysis, and then had the will, courage, judgment and 
persuasive skill to put his view into the mainstream and have it prevail. He did all this without losing 
the respect of his colleagues, some of whorri had strong initial objections. Canada did not ratifl the 
Agreement until, many years later, after the flaws that [the petitioner] had pointed out had been re- 
negotiated and corrected. 
His work on "The Obstacles to Growth" and "A New Direction for Canada: An Agenda for Economic 
Renewal" prepared the way for Canada's support for the Canada-U.S. Free Trade Agreement, the 
most important economic initiative in Canada in the past fifty years. This led to the end of the 
National Energy Policy (NEP) and the Foreign Investment Review Agency (FIRA) as well as tariffs 
going to zero over time between the U.S.A. and Canada and it ultimately led to NAFTA. 
[The petitioner's] contributions as Head of SectiodChief were outstanding. His staff included two 
persons who later became directors-generals - now Director-General for 'labor 
Market Policy in Human Resources and Skills Development Canada, and myself, currently Director- 
General, Policy in Agriculture and Agri-food Canada). 
I can confirm [the petitioner's] account of his activates during the time that I knew him. In my view, 
he is a person of "extraordinary ability with world class skills" and will make a huge contribution to 
Page 7 
the corporate world in the United States, especially when it comes to addressing regulatory issues 
associated with the exploration and production of oil and gas. 
Thomas Shenstone asserts that the petitioner "will make a huge contribution to the corporate world," but he 
does not address how the petitioner's past accomplishments in the private sector rise to the level of a 
contribution of major significance in his field. A petitioner cannot file a petition under this classification 
based on the expectation of future eligibility. See Matter of Katigbak, 14 I&N Dec. 45 (Comrn. 1971). 
In this case, the petitioner's three witnesses consist entirely of his current and former coworkers. With regard to 
the personal recommendation of those who have worked closely with the petitioner, the source of the 
recommendations is a highly relevant consideration. These letters are not first-hand evidence that the 
petitioner has earned sustained acclaim outside of his affiliated institutions. The statutory requirement that an 
alien have "sustained national or international acclaim," necessitates evidence of recognition beyond close 
acquaintances of the petitioner. While such evidence need not be in the form of letters from independent experts 
(the regulation at 8 C.F.R. 4 204.5@)(3) provides ten types of evidence), the opinions of close colleagues alone 
cannot form the cornerstone of a successful claim of national or international acclaim. 
We accept that the petitioner played a role in contributing to the formulation of Canadian trade policy in the 
early to mid-1980s, but the level of impact specifically attributable to the petitioner has not been adequately 
demonstrated. Further, we cannot ignore that the statute and regulations require the petitioner's acclaim to be 
sustained. There is no evidence showing that the petitioner, who resigned from government service in 1987, 
has been active in formulating national trade policy subsequent to the late 1980's. The absence of evidence of 
such activity indicates that the petitioner has not sustained whatever acclaim he may have earned while 
working for the Canadian Department of Finance. Without extensive documentation (beyond mere 
testimony) showing that the petitioner's work has been unusually influential or highly acclaimed at the 
national or international level, we cannot conclude that it constitutes a contribution of major significance. 
Thus, the petitioner has not established that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The petitioner submitted a November 8, 1984 document (1 15 pages) entitled "A New Direction for Canada." 
As stated previously, this document bears the name of rather than the 
petitioner's name. There is no evidence showing the specific sections of this document authored by the 
petitioner. 
 Further, the plain language of this criterion requires the petitioner's work to appear "in 
professional or major trade publications or other major media." The petitioner's evidence has not been shown 
to meet this requirement. Nor is there evidence showing that this document had substantial national or 
international readership or that the document was widely disseminated outside of Canada's Department of 
Finance. 
On appeal, counsel asserts that the petitioner wrote an internal government paper on the economic effects of 
international commodity agreements, contributed to an Organization for Economic Co-operation and 
Development study, and prepared a policy paper on the funding of Free Trade Zones in Latin Arneric and the 
Caribbean. The record, however, includes no evidence of this material. Without documentary evidence to 
Page 8 
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. 533,,534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has peij4orrned in a leading or critical 'role for organizations or 
establishments that have a distinguished reputation. 
'In order to establish that he performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of his role within the entire organization .or 
establishment and the reputation of the organization or establishment. Where an alien has a leading or critical 
role for a section of a distinguished organization or establishment, the petitioner 'must establish the reputation 
of that section independent of the organization as a whole. 
The aforementioned letter of support from otes that the petitioner has served as 
President of Astec Partners Inc. during the last several years, but there is no supporting documentary evidence 
showing that this company has earned a distinguished national or international reputation. 
The aforementioned letters of support from indicate that the 
petitioner performed admirably as Head of Section/Chief in the International Economic Relations Division of 
the Canadian Department of Finance. The record, however, includes no supporting documentary evidence 
(such as media reports or scholarly articles) showing that the International Economic Relations Division had 
earned a distinguished reputation during the petitioner's tenure. Nor has the petitioner submitted evidence 
showing that his role was more important than that of the other Heads of SectionIChiefs employed in the 
. . 
International Economic Relations Division. It is further noted that the petitioner's position was subordinate to 
that of In this case, the petitioner's evidence 'is not 
adequate to demonstrate that he has performed in a leading or critical role for a distinguished organization, or 
that he has sustained whatever acclaim he may have earned while working for the Canadian Department of 
Finance during the early to mid-1980's. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in thefield. 
On appeal, counsel asserts that the petitioner meets this criterion. The record, however, includes no supporting 
evidence (such as payroll records or income tax forms) showing the petitioner's actual earnings for any 
specific period of time. . As stated previously, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena at 533, 534; Matter of Luureuno at 1; and Matter of Ramirez-Sunchez at 
503, 506. Further, the plain language of this criterion requires the petitioner to submit evidence of a high 
salary "in relation to others in the field." The petitioner offers no basis for comparison showing that his 
Page 9 
compensation was significantly high in relation to others in his field. Thus, the petitioner has not established that 
he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate he meets at 
least three of the criteria at 8 C.F.R. 9 204.5(h)(3). We find that the petitioner's reliance on three witness 
letters prepared In support of the petition rather than contemporaneous evidence of his achievements and 
recogn~tion is misplaced. The benefit sought in the present matter is not the type for which documentation is 
typically unavailable and the statute specifically requires "extensive documentation" to establish eligbility. See 
section 203(b)(l )(A)(l) of the Act. Further, the regulation at 8 C.F.R. 9 204.5(h)(3) requires documentary 
evldence that the petitioner "has sustained national or international acclaim and that his . . . achievements 
have been recogn~zed in the field of expertise." This regulation provides that eligibility may be establ~shed 
through a one-time achevement or through documentation meeting at least three of ten criteria. The commentary 
for the proposed regulations implementing section 203(b)(l)(A)(i) of the Act provide that the "intent of Congress 
that a very high standard be set for aliens of extraordinary ability is reflected in this regulation by requiring the 
petitioner to present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 
30703,30704 (July 5, 199 1). The regulatory criteria require specific documentation beyond mere testimony, such 
as awards, published material about the alien, and evidence of a high salary. In the present matter, the petitioner 
cannot arbitrarily replace such evidence with attestations from the petitioner's current and former coworkers, 
who assert that they find hs abilities to be extraordinary. While letters of support from one's associates may 
place the evidence for the regulatory criteria in context, they cannot serve as primary evidence of the specific 
achievements required by the regulatory criteria. Further, while the regulation at 8 C.F.R. 204.5@)(4) permits 
"comparable evidence" where the ten criteria do not "readily apply" to the alien's occupation, the regulation 
neither states nor implies that letters of support attesting to the alien's accomplishrnents are "comparable" to the 
strict documentation requirements in the regulations setting forth the ten criteria.' Evidence in existence prior to 
the preparation of the petition carries greater weight than letters of support prepared especially for submission 
with the petition. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small percentage 
at the very top of his field. The evidence is not persuasive that the petitioner's achievements set him 
significantly above almost all others in hls field at a national or international level. Therefore, the petitioner 
has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be 
approved. 
Beyond the decision of the director, the regulation at 8 C.F.R. 204.5(h)(5) requires "clear evidence that the 
alien is coming to the United States to continue work in the area of expertise. Such evidence may include 
' letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, oi a 
statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the 
United States." The record includes no such evidence. 
I In the present case, there is no indication that eligibility for visa preference in the petitioner's occupation cannot be 
established by the ten criteiia specified by the regulation. 
. 
Page 10 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.C. 9 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
'ORDER: The appeal is dismissed.