dismissed EB-1B Case: Religious Studies

(b)(6)
DatefEB 1 9 201l Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and lmn1igratiun s~rvin:s 
Administrative Appeals Office (i\AO) 
20 Massachuseus Ave:, N.W. MS 20•10 
. Washington, DC 20529-20'10 
U.S. Citizenship 
·and Immigration 
Services· 
FILE: 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Rescarthcr Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(B) 
~- ~---- -· ·- · 
ON BEHALF OF PETITIONER: 
I 
INSTRUCTIONS: 
I L---------------------~ 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately appiied the law in reaching its decision, or you h·ave additional 
information that you wish to have considered, you may file a motion io reconsider or a motion to reopen . 
in accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fcc of $tl30. The' . 
specific requirements for filing such· a motion can be found ·at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that ·the motion seeks to reconsider or.reopen. 
T5.l~ 
Ron Rosenberg · 
. ·Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employme·nt-b~sed immigrant 
visa petition. The Administrative Appeals Office (AAO)rejected a subsequent appe<)l as untimely. 
The AAO granted two subsequent motions to reopen/reconsider and twice affirmed its previous ' 
decisions.· The matter is now before the AAO on a third motion to reopen!recor:tsider. The motion 
will be granted, the previous decision of the AAO will be affirmed, and the petition will remain 
denied. 
The petitioner is a community development organization. It seeks to classify the beneficiary as 
an outstanding professor er researcher pursuant to section 203(b)(1)(B) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(B). The petitioner seeks to employ the 
beneficiary permanently in the United States as a professor. The director determined the 
petitioner had not established that the beneficiary had attained the outstanding level of achievement 
required for classification as an outstanding researcher or professor and that the petitioner was a 
qualifying private employer. 1 The AAO rejected the subsequent appeal as untimely filed. The 
AAO granted a subsequent motion to reopen and affirmed the previous .decision of the AAO finding 
the appeal was properly rejected as untimely as it did not include the proper fee. The AAO granted a 
second motion to reopen and affirmed its previous decision, finding that the petitioner, through 
current counsel, did not submit any of the required documentation to support its asserted claim of 
ineffective assistance of prior counsel. Current counsel has filed a third motion to 
reopen/reconsider, and has submitted additional documentation regarding ineffective assistance of 
prior counsel and additional evidence in support ofthe beneficiary's eligibility pursuant to section 
203(b)(l)(B) of thelmmigration and Nationality Act (the Act). 
A motion to reopen must state the new facts to be proven in the reopened proceeding and, when 
filed, be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion 
to reconsider must state the reasons for reconsideration and be supported by any · pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
Service policy. A motion to reconsider a decision on an application or petition must, when filed, 
also establish that the decision . was incorrect based on the evidence of record at the time ·of the 
initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet the applicable requirements 
when filed shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
On motion, current counsel does not contest the AAO's finding that the appeal was untimely. 
Current counsel alleges ineffective assistan·ce of prior counsel in failing to timely file the appeal 
with the proper fee, and .in erroneously failing to submit evidence in support of the beneficiary's 
eligibility pursuant to section 203(b)(1)(B) of the· Immigration and Nationality Act (the Act). 
Upon review, the petitioner has failed to fulfill the prerequisites Jor allegations of ineffective 
assistance of counsel. See Matter of Assaad, 23 I&N Dec; 553 (BIA 2003); Matter of Grijalva, 
21 l&N Dec. 472 (B1A 1996); Matter of Lozada, 19 I&N Dec. 6 37 (BIA 1988)), affd, 857 F.2d 
10 (lstCir. 1988). 
1. The director determined that the petitioner failed to submit,evidence that the beneficiary satisfied any of the 
regulatory criteria set forth at 8 C.F.R. § 204.5(i)(3XiXA) through (F). 
,•' 
(b)(6)
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· It is noted that any appeal based upon a claim of ineffective assistance of counsel requires: (I) 
that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in 
detail the agreement that was entered into with counsel with respect to the actions to be taken 
and what represemations counsel did or did not make to the respondent in this regard, (2) that 
counsel whose integrity or competence is being impugned -be informed of the allegation"s leveled 
against him and be given an opportunity to respond, and (3) that the appeal or motion reflect 
whether a complaint has been filed with appropriate disciplinary authorities with respect to any 
violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 
I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). Each requirement will be 
examined below. · 
First, pursuant to Matter of Lozada, the claim must be supported by an affidavit of the allegedly 
aggrieved petitioner setting forth in detail the agreement that was entered into with counsel with 
respect to the actions to be taken and what representations counsel did or did not make to the 
petitioner in this regard. /d. af 639. Current counsel presents an affidavit of the petitioner on 
appeal. However, current counsel fails to include the. representation agreement between the · 
petitioner and prior counsel. Therefore, the first requirement of Matter of Lozada has not been 
met. 
Second,· pursuant to Matter of Lozada, the petitioner's former counsel must be informed of the 
allegations leveled against her and be given an opportunity to respond . Matter of Loz£ula, I Y 
I&N Dec. at 639. This requirement has been met. 
Third, pursuant to Matter of Lozada, the motion must reflect whether a complaint has been filed 
with appropriate disciplinary authorities with respect to any violation of former counsel's ethical 
or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. at 639 . The 
petitioner has provided a copy of a bar complaint filed the New Jersey State Bar Association. 
This requirement has been met. · 
As additional evidence in support of a claim of ineffective assistance of counsel, present counsel 
has submitted additional documentation regarding the beneficiary's eligibility as an outstanding 
professor pursuant to section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 
which it asserts were erroneously not submitted by prior counsel. 2 The additional evidence, 
2 The regulation at 8 C.F.R § 204.5(i)(3Xi) states that a petition for an outstanding professor or researcher must be 
accompanied by "[e]vidence that the professor or researcher is recognized internationally as outstanding in ·the a~ademic 
field specified in the petition." The regulation lists the folloWing six criteria, of which the beneficiary must submit 
evidence qualifying under at least two. · 
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the 
academic field; 
(B) Documentation of the alien's membership in associations in the academic field which require r 
outstanding achievements of their members; · 
(C) Published material in professional publications written by others about the alien's work in the 
academic field. Such materiaf shall include · the title, date, and author of the material , a nd any 
necessary translation ; ' · 
(b)(6)Page 4 
pertammg .to the regulatory criteria · set forth at 8 · C.F.R. § 204.5(i)(3)(i)(B), membership in 
associations, and (F), authorship of scholarly books or articles, is as follows: 
• As evidence in support of the beneficiary's eligibility ·pursuant to the criteria set forth at 
8 C.F.R. § 204.5(i)(3)(i)(B), current counsel has submitted a letter from 
Executive Director of the 
Connecticut. He states that in 1999 the beneficiary was selected to receive a fellowship 
from , a part of the _ , a · 
ministry of the for study and residence at the Mr. states he recalls 
meeting the beneficiary in Kenya before he w·as selected to receive the fellowship. He 
states that the beneficiary was selected but was unable to participate in the program. Mr: 
s letter is accompanied by d~cumentary evidence regarding and a 
listing of _ . Mr.. provides the minimum application 
requirements and criteria for selection for the program: 
1. Professional-level position and training in Religious Studies, Church History or 
Oral History; · 
2. A minimum of seven · years instructional or research experience with an 
established university or graduate school of theology; 
3. Experience is (sic) supervising graduate level research project in Africa; 
4. Academic administrative experience a plus; 
5. Demonstrat.ed record of publications in the field of African religion and/or 
religious history; · 
6. Participation (as) a presentater (sic)) . in international forums on religion or church 
history. 
A review of the requirements for the program reveals that such 
requirements are not "outstanding achievements" in the field, and do not constitute 
qualifying evidence that meets the plain language ~equirem~nts of this criterion, set forth at 
8 C.F.R. § 204.5(i)(3)(i)(B). 
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work or 
others in the same or an allied academic field; · 
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; 
·or ' · · · · 
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with 
international circulation) in the academic field. .. 
3Current counsel also submits two additional documents: a copy of a Research Proposal and a print-out of 
information regarding the . _ The documents do not mention the 
beneficiary, and current counsel provides no infonnation that would serve to link the documentation to the beneficiary. 
Therefore these documents will not be considered. · 
(b)(6)
Page 5 
• As evidence in support of the beneficiary's eligibility pursuant to the criteria set forth at 
8 C.F.R. § 204.5(i)(3)(i)(F), current counsel has submitted articles written by the · 
beneficiary in 2003 and 2006, respectively, which have previously been submitted into 
the record. Current counsel has also submitted a copy of portions of a book published by 
the beneficiary in 2009, also previously submitted into the record. Counsel has further 
submitted evidence that the beneficiary's book is listed as reference material in syllabi of 
classes at two colleges in 2010 and 2011, respectively
4
, aswell as in the undated syllabus 
of a class from tfle petitioning organization. 5 As stated in our previous decision 
regarding evidence of the beneficiary's book, and its use as classroom reference material, 
this evidence is not relevant to the issue of the beneficiary's eligibility for the benetit 
sought, since the book was published after October 11, 2007, the date of filing the 
employment-based immigrant visa petition, and cannot be considered evidence of the 
beneficiary's eligibility after that date. See 8 C.F.R. § 103.2(b)(12); Matter ofKatighak, 14 
I&N Dec. 45, 49 ·(Reg. Comm. 1971).6 Current counsel also · submitted on appeal 
documentary evidence that the journal which published the beneficiary's articles, 
has an international circulation constituting qualifying eviden.ce 
·that meets the plain language requirements of this criterion, set forth at 8 C.F.R. 
§ 204.5(i)(3)(i). Regardless, the record fails to establish that the beneficiary's articles have 
garnered any citations or other response in the academic field that would set the beneficiary 
apart in the acaqemic community through eminence and distinction based on international 
recognition, the purpose of the regulatory-· criteria. 56 Fed. Reg. at 30705. Indeed, the 
record lacks evide·nce that members of the academic field outside of the beneficiary's 
immediate circle of colleagues are even aware of his work. The record does riot establish 
the beneficiary as one who is internationally recognized as an outstanding researcher or 
professor. Therefore, the petitioner has not established that the beneficiary is qualified for 
the benefit sought. 
As stated above, the AAO's review ·In this matter is· limited to the narrow issue of whether the 
petitioner has presented and documented new facts or documented sufficient reasons, supported 
by pertinent precedent decisions, to warrant the re-opening or reconsideration of the AAO's 
decision issued on May 14, 2012. In the current proceeding, counsel has not fully addressed the 
deficiencies in the record, which are the grounds stated for dismissal of the appeal, nor does the 
evidence submitted with the motion overcome them. . . 
In this case, we concur with our prior decision that the appeal was untimely, and the untimely 
appeal did not meet the requirements of a motion to reopen or a motion to reconsider when it was 
filed. As the petitioner has not established an ineffective assistance of counsel claim, the AAO 
cannot find that we abused our discretion 
in determining that the petitioner should not be 
4 
The AAO noies that one of the syllabi is from where, according to the 
beneficiary's curriculum vitae, he was employed in an administrative capacity from May 1994 to July 2003. 
5 A review ofthe record reveals thatthis may be the class described in the petitioner's job offer to the beneficiary. 
6 Mr. · tlso mentions that several colleges ' syllabi have referenced the applicant's book, although he ui>cs not 
state the basis for his knowledge of this fact. 
(b)(6). . ' . 
Page 6 
· excused for its failure to file the appeal within the period allowed. Therefore, our prior decision 
will be affirmed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The·petitioner has not sustained that burden. Accordingly, the motion will be 
dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the 
director and the AAO will not be disturbed. 
ORDER: The AAO's decision of May 14, 2012 is affirmed . . The petition will remain denied.