remanded EB-1A Case: Real Estate Development

U.S. Citizenship 
and Inunigration 
Services 
MATTER OF B-L-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 8, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur in real estate development, 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, Texas Service Center, denied the Form 1-140, Immigrant Petition for Alien Worker, 
concluding that the Petitioner previously submitted altered documentation and is therefore 
inadmissible to the United States. The Petitioner argues that his former attorney provided the 
documentation resulting in effective counsel. 
Upon de nova review, we will withdraw the decision and remand the matter to the Director. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
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Matter ofB-L-
internationally recognized award). If that petitioner does not submit this evidence, then he or she 
must provide 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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable 
material if he or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not 
readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Director approved the Petitioner's first extraordinary ability petition in 2013. Three years later, 
the Director issued a notice of intent to revoke the approval of the petition, finding that the Petitioner 
submitted altered documentation relating to his receipt of awards and questioned his eligibility for 
membership in associations. In response, the petition was withdrawn, and the Director formally 
revoked the approval of the petition. 
After the filing of a second petition, the Director issued a notice of intent to deny referencing section 
212(a)(6)(C)(i) of the Act, finding that the Petitioner "is ineligible for a visa or admission into the 
United States" based on the prior revocation for "fraud and misrepresentation." Moreover, the 
Director found that the Petitioner "acknowledge[ d] that fraudulent documents were submitted, but 
blame[d] his previous attorney." In addition, the Director concluded that "[t]his does not negate the 
fact that he was previously found to have committed fraud, thus the [Petitioner] is ineligible for the 
benefit sought pursuant to INA 212(a)(6)(C)(i)." 
On appeal, the Petitioner claims to be "the victim of ineffective assistance of counsel and fraud that 
was perpetrated by Attorney of Pennsylvania , whom [the Petitioner] has 
unknowingly retained due to misrepresentation by a " Further, the Petitioner asserts that 
"he submitted original documentation that attest to his extraordinary ability for Form 1-140 EBIA 
petition that was subsequently fraudulently altered by and Attorney 
without [his] knowledge." In addition, the Petitioner indicates that he had no knowledge that 
withdrew his first petition and filed a new one. 
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Matter ofB-L-
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), 
aff'd, 857 F.2d 10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with former counsel (i.e., the specific actions 
that counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective 
assistance and was given an opportunity to respond. Any response by prior counsel ( or 
report of former counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate 
disciplinary authorities (e.g., with a state bar association) or an explanation why the 
petitioner did not file a complaint. 
Id at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. Id. 
Allowing former counsel to present his or her version of events discourages baseless allegations, and 
the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his or her client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). 
Second, if the petitioner satisfies these threshold documentary requirements, he must also show that 
former counsel's assistance was so deficient that he was prejudiced by the performance. 1 
Specifically, the petitioner must show that there is a reasonable probability that the outcome would 
have been different without former counsel's mistakes, 2 and that he had at least a plausible ground 
1 Lozada at 632. In Lozada, the Board detennined that Lozada was not prejudiced by counsel's failure to file an appeal 
brief (resulting in the summary dismissal of the appeal) because: he received a full and fair hearing at his deportation 
hearing, at which he was given every opportunity to present his case; he did not allege any inadequacy in the quality of 
prior counsel's representation at the hearing; the inunigrationjudge considered and properly evaluated all the evidence 
presented; and the immigrationjudge's decision was supported by the record. 
2 Yu Tian Liv. United States, 648 F.3d 524, 527 (7th Cir. 2011); Delhaye v. Holder, 338 Fed. Appx. 568, 570 (9th Cir. 
2009). 
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Matter ofB-L-
for relief 3 There is no prejudice if the adverse decision would have been issued even without 
former counsel's errors. See, e.g., Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 2007). 
Here, the Petitioner has not met the threshold documentary requirements to assert a claim of 
ineffective assistance of counsel. While the Petitioner has submitted an affidavit which indicates 
that his new attorney has attempted to call the statement does not contain sufficient 
detail to determine that the prior attorney has been informed of the allegation of ineffective 
assistance of counsel and been provided an opportunity to respond. Furthermore, the record does not 
demonstrate that the Petitioner has filed a complaint with the appropriate disciplinary authorities or 
contain an explanation for why such a complaint has not been filed. Thus, the Petitioner has not 
provided sufficient information for us to evaluate a claim for ineffective assistance of counsel. 
For the reasons set forth, we will remand the matter to the Director. Because the Petitioner 
maintains that he never filed the current petition, the Director must first determine whether the 
petition was properly filed. See 8 C.F.R. § 103.2(a). If so, he must then evaluate whether the record 
shows that: (1) the Petitioner has extraordinary ability in the sciences, arts, education, business, or 
athletics, (2) he seeks to enter the United States to continue his work in his area of extraordinary 
ability, and (3) he will substantially benefit prospectively the United States. See section 
203(b)(2)(B) of the Act; see also Kazarian v. USCIS, 596 F.3d at 1115. Here, the Director found 
that the previous submission of altered documents deemed the Petitioner inadmissible for fraud or 
willful misrepresentation for the current benefit. A visa petition proceeding, however, is not the 
appropriate forum for finding the Petitioner inadmissible to the United States. See Matter of 0, 8 
I&N Dec. 295 (BIA 1959). Instead, he may be found inadmissible at a later date when he 
subsequently applies for admission into the United States or applies for adjustment of status. See 
sections 212(a) and 245(a) of the Act, 8 U.S.C. §§ l 182(a) and 1255(a). 
III. CONCLUSION 
The Director did not make a determination as to whether the Petitioner properly filed the petition 
and, if so, is an individual of extraordinary ability. Accordingly, we will remand the matter for 
further consideration of the record, including documentation submitted on appeal, and entry of a new 
decision. 4 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 of Skirball Cultural 
Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
3 See Martin ez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). 
4 We have the authority to withdraw a decision and remand the case for further action, with an order that it be certified 
back to us if the new decision is adverse to the affected party. USCIS Policy Memorandum PM-602-0087 , Certification 
of Decisions to the Admi nistrative Appeals Office (AAO) 4 (July 2, 2013), https://www.uscis.gov/laws/policy­
memoranda, Adjudicator 's Field Manual 3.5(c), 10.18(a)(3), https://www.uscis.gov/ilink. This order is not meant to 
compel approval of the remanded case, but is designed to preserve the affected party's ability to seek appellate review 
without payment of a second appeal fee. Id. 
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Matter ofB-L-
ORDER: The decision of the Director, Texas Service Center, is withdrawn. The matter is 
remanded to the Director, Texas Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision, which, if adverse, 
shall be certified to us for review. 
Cite as Matter of B-L-, ID# 234263 8 (AAO Mar. 8, 2019) 
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