dismissed EB-1B Case: Research

(b)(6)
DATE: 
FEB 2 8 2014 
OFFICE: TEXAS SERVICE CENTER 
INRE: . Petitioner: 
Beneficiary: 
u •§: '.Qepittl!Ji'~qt\9f:!!(}rif~liPcd ~~£i!:t ity 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citiz~nship 
and Immigration 
ServiCes 
FILE: 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(B) 
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 constructions 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 a Notice 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://www.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. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
(b)(6)
NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition and the matter is again before the Administrative Appeals Office (AAO) on a motion to reopen 
and reconsider. The motion will be dismissed. 
The petitioner has filed a total of two appeals and four motions with the AAO. Most recently, the AAO 
granted the petitioner's motion to reopen and reconsider, and reaffirmed the denial of the immigrant 
petition, in a decision dated August 6, 2013. The matter is once again before the AAO on a combined 
motion to reopen and reconsider.1 
The director denied the petition on May 8, 2009 on multiple grounds, concluding that the petitioner failed 
to establish the following: (1) that the beneficiary is recognized internationally as an outstanding 
professor or researcher; (2) that the petitioner has offered the beneficiary a tenured or tenure-track 
teaching position; (3) that the position offered to the beneficiary is in his academic field; and ( 4) that the 
petitioner employs at least three persons in a full-time research position. 
The petitioner filed its first appeal on June 23, 2009, asserting as its only basis for appeal that "the denial 
was the result of legal error." The AAO rejected the petitioner's appeal as untimely filed and for not 
meeting the requirements for a motion to reopen or reconsider. 
The petitioner filed its second appeal on March 29, 2010, claiming that the first appeal was timely filed. 
The AAO treated the second appeal as a motion to reopen, granted the motion, and reaffirmed its previous 
decision and the denial of the petition, concluding that the petitioner failed to establish that its first appeal 
was timely filed or met the requirements for a motion.2 
The petitioner subsequently filed a motion to reopen and reconsider on March 10, 2011, asserting that the 
denial of the petition was in error as to the director's finding that the petitioner was a private employer, 
and that the petitioner's former counsel was ineffective. In support of this motion, the petitioner 
submitted several new arguments and documents pertaining to the beneficiary's eligibility as an 
outstanding professor. The AAO granted the motion and reaffirmed its previous decision and the denial 
of the petition, concluding that the petitioner failed to establish a claim of ineffective assistance of 
counsel, and that the first appeal was timely filed and met the requirements of a motion to reopen or 
reconsider. 
The petitioner filed another motion to reopen or reconsider on June 14, 2012, with which the petitioner 
submitted new documents to support its claim of ineffective assistance of counsel, including, inter alia, 
an affidavit from the petitioner regarding its claim of ineffective assistance of counsel, the petitioner's 
complaint to the New Jersey Bar Association which was served upon the former attorney, and documents 
pertaining to the beneficiary's eligibility as an outstanding professor which the petitioner claimed its 
1 The petitioner indicated on the instant Form I-290B that it was filing an appeal, but then clarified in the 
brief that it was filing a motion to reopen and reconsider. 
2 Any second or subsequent appeal would have been rejected as improperly filed because the AAO does 
not exercise appellate jurisdiction over AAO decisions. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
former counsel failed to submit. The AAO granted the motion and reaffirmed its previous decision and 
the denial of the petition, concluding that the petitioner had not established a claim of ineffective 
assistance. The AAO also concluded that 
the petitioner failed to establish that its first appeal was timely 
filed, or that the AAO abused its discretion by failing to excuse the untimely filing. 
The petitioner then filed its third motion to reopen and reconsider on March 18, 2013, claiming that the 
AAO erred in determining that the petitioner failed to establish a claim of ineffective assistance of 
counsel. Specifically, the petitioner asserted that the AAO misapplied Matter of Lozada, 19 r&N Dec. 
637 (BIA 1988) by requiring the petitioner to submit the representation agreement between the petitioner 
and prior counsel, when such evidence is not specifically required under Matter of Lozada. The petitioner 
submitted additional documents to support the motion, including an affidavit, its retainer agreements with 
former counsel, and new documents pertaining to the beneficiary' s eligibility as an outstanding professor 
which the petitioner claimed its former counsel failed to submit. The AAO granted the motion but 
reaffirmed its previous decision and the denial of the petition. The AAO concluded that the petitioner 
still failed to establish a claim of ineffective assistance of counsel. In particular, the AAO found the 
petitioner's affidavit insufficient, as it failed to set forth in detail the agreement that was entered into with 
former counsel, and what representations former counsel made or did not make to the petitioner with 
respect to the actions to be taken. The AAO also noted that the retainer agreements themselves did not 
support the petitioner's claim of ineffective assistance of counsel. 
The petitioner now files the instant motion to reopen and reconsider. On motion, the petitioner asserts 
that the AAO erred in finding that 
the petitioner failed to satisfy the Lozada requirements. Alternatively, 
the petitioner asserts that the AAO should not strictly apply the Lozada requirements to the instant case, 
because the record "clearly 
demonstrates the legitimacy of the effectiveness claim." The petitioner states, 
in pertinent part: 
While ineffective assistance of counsel claims in appeals or motions are mainly based on 
Lozada requirements, however, federal courts held that the application of those 
requirements should be flexible. In fact, the courts have held that there is no need to 
comply with Lozada when the record itself demonstrates the legitimacy of the 
ineffectiveness claim. See Rodriguez-Lariz, 282 F.3d 1218, *22 (9th eir. 2000); Castillo­
Perez, 212 F.3d 518, 525 (9th eir . 2000); Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 
(91h eir. 2000). Moreover, even where the record alone does not establish the claim, the 
Lozada factors are not "rigidly applied." See Rodriguez-Lariz , 282 F.3d 1218 at *22; see 
also Ontiveros-Lopez , 213 F.3d 1121 (9
1
h eir. 1999) (criticizing the BIA for arbitrary 
application of Lozada requirements). 
In this case, the prior attorney failed to properly submit the initial application, which 
resulted in users issuing an RFE, requesting numerous additional documents. The 
attorney further failed to provide all the requested documents despite the fact that those 
documents were available. The attorney further failed to file a timely appeal: she failed 
to submit correct filing fees which resulted in users rejecting the filing, and the 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
untimely appeal. The record clearly demonstrates the legitimacy of the effectiveness 
claim. 
* * * 
The petitioner initially satisfied the requirements under Lozada and established that such 
incompetent action by counsel, in signing and submitting the appeal on the last day of filing, 
with the incorrect filing fee, is indicative of prior counsel's reckless behavior. The Service's 
reliance on the· date the second retainer agreement was signed to prove that prior counsel 
was apparently not "inept" is preposterous. 
On motion, the petitioner submits another affidavit stating, in pertinent part: 
I am writing this letter as it appears that the last denial of [the beneficiary] indicates that 
we were late in retaining an attorney for the a.QPeal. In fact our organization had utilized 
an attorney, New Jersey 
to file various applications sponsoring aliens to work for many branches of [the 
petitioner]. Immediately upon her receipt of the denial of [the beneficiary's] application , 
the attorney (who was handling all of our immigration matters at the time) should have 
filed an appeal, and we had in fact given her the authorization to file this appeal. 
We distinctly recall authorizing the attorney to appeal the decision and we requested that 
she send us a second retainer agreement outlining the appeal fees and terms. 
Unfortunately, the attorney did not send us the second retainer agreement until shortly 
before the filing deadline date of June 10, [2009]. We returned the retainer agreement to 
her immediately upon receipt and expected that counsel was aware of the time frame to 
file the appeal. We would also like to add that counsel had all the necessary paperwork 
in her possession to begin preparing the appeal upon our verbal authorization, long before 
the deadline date .... 
The petitioner also resubmits copies of documents pertaining to the beneficiary's eligibility as an 
outstanding professor to support the instant motion. 
The regulation at 8 C.P.R.§ 103.5(a)(3) states, in pertinent part: 
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. 
Upon review of the evidence and for the reasons discussed herein, the AAO finds that the instant motion 
does not meet the requirements of a motion to reconsider. The petitioner has not established that the AAO 
erred in determining that the petitioner failed to establish an ineffective assistance of counsel claim. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
In order to satisfy the first element under Matter of Lozada, the petitioner must submit 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 representations counsel did or did not make to the 
respondent in this regard. 19 I&N Dec. at 639. In the AAO decision dated August 6, 2013, the AAO 
determined that the petitioner failed to meet the first element under Matter of Lozada, as the petitioner's 
affidavit was insufficient. Specifically, the affidavit failed to set forth in any detail the agreement that 
was entered into with former counsel, Ms. with respect to the petition, the RFE, and the 
filing of the first appeal to the AAO. The petitioner's affidavit only stated in conclusory terms that 
former counsel was ineffective because she had been furnished with particular documents but did not 
submit them in response to the RFE, and that former counsel was inept by failing to submit the appeal 
with the proper filing fee within the statutory time. The petitioner's affidavit also failed to explain what 
representations former counsel did or did not make to the petitioner regarding the petition, the RFE, and 
the appeal. 
Further, in the AAO decision August 6, 2013, the AAO noted that the retainer agreements themselves did 
not clearly support the petitioner's claim of ineffective assistance of counsel.3 The AAO observed that 
the first retainer's scope 
did not include the filing of the appeal, and that the second retainer, which was 
entered into for the specific purpose of filing an appeal, was signed on June 10, 2009, the last day in 
which the petitioner could have timely filed an appeal. The AAO then concluded that without any 
explanation as to what specific agreement the petitioner had entered into with Ms. with 
respect to the appeal, including what actions to take with respect to the appeal and what representations 
Ms. made or did not make to the petitioner with regards to filing the appeal, the petitioner 
failed to establish its claim of ineffective assistance of counsel. 
In the instant motion, the petitioner first asserts that its affidavit satisfied the requirements under Matter of 
Lozada, and that the affidavit "[set] forth in detail, the agreement that was entered into with the prior 
counsel with respect to the specific actions to be taken on the Beneficiary's behalf, and explaining in 
detail how she failed to comply with the agreement." However, other than this assertion, the petitioner 
failed to explain how its affidavit was sufficient. Another review of the petitioner's original affidavit 
reflects that it failed to set forth in any detail what agreement was entered into with former counsel, and 
what representations former counsel made or did not make to the petitioner with respect to the actions to 
be taken. The petitioner's initial affidavit stated, in pertinent part: 
3 Although not noted in the AAO decision August 6, 2013, the AAO now notes that the first retainer was 
signed by Msgr. (founder and CEO of the petitioner) as "the client," and by 
(the petitioner), on behalf of "the firm." The second retainer is signed only by 
Msgr. as "the client." None of the retainer agreements bear an appropriate signature by an 
authorized representative of "the firm." Both retainer agreements specify that "the firm" refers to 
which is the law firm of former counsel. In light of 
the above, the validity of the retainer agreements is in question. 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
In regard to one such alien, [the beneficiary], Ms. was hired in 2007 to prepare 
and file an I-140 Petition to classify the Beneficiary as Outstanding Researcher/Professor; to 
review documentation furnished to the attorney and submit them promptly to the Service; to 
respond to any Request for Evidence received by the attorney; and to promptly file any 
appeal by paying the proper filing fee ... . 
Counsel failed to effectively pursue the employer's interests by conducting herself in a 
negligent and grossly incompetent manner. Among the areas of ineffective counsel were two 
categories to establish evidence of international recognition which the attorney was furnished 
but which she did not submit in response to Request for Evidence in October 2008 ... 
That Attorney was further inept in failing to perfect Appeal by failing to submit the Appeal 
with proper filing Fee within the statutory time thereby causing the Appeal to be rejected . . .. 
At most, the petitioner's affidavit set forth general allegations against Ms. without 
identifying the specific factual basis for these allegations. For example, the petitioner asserts that Ms. 
"was further inept in failing to perfect Appeal by failing to submit the Appeal with proper 
filing Fee within the statutory time thereby causing the Appeal to be rejected." However, the petitioner 
did not identify what actual agreement, if any, was entered into with former counsel with respect to the 
appeal, and what representations former counsel made or did not make to the petitioner with respect to the 
appeal. Merely alleging that former counsel was hired to file an appeal, and that she was inept by failing 
to perfect an appeal, without any further explanation and detail, is insufficient to satisfy the first element 
under Matter of Lozada. 
On motion, the petitioner asserts that the AAO is emphasizing "form over substance." However, this is 
not merely a futile exercise in "form over substance." In Matter of Lozada, the Board of Immigration 
Appeals (BIA) explained the necessity of a detailed affidavit in evaluating claims of ineffective assistance 
of counsel: 
A motion based upon a claim of ineffective assistance of counsel should be supported by 
an affidavit of the allegedly aggrieved respondent attesting to the relevant facts. In the 
case before us, that affidavit should include a statement that sets forth in detail the 
agreement that was entered into with former counsel with respect to the actions to be 
taken on appeal and what counsel did or did not represent to the respondent in this regard 
The high standard announced here is necessary if we are to have a basis for assessing the 
substantial number of claims of ineffective assistance of counsel that come before the 
Board. Where essential information is lacking, it is impossible to evaluate the substance 
of such claim. In the instant case, for-example, the respondent has not alleged, let alone 
established, that former counsel ever agreed to prepare a brief on appeal or was engaged 
to undertake the task. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
!d. at 639. 
Here, the petitioner's affidavit lacked essential information, thus rendering it impossible for the AAO to 
evaluate the substance of the petitioner's claim of ineffective assistance of counsel. Without specific 
factual information as to the actual agreements and representations former counsel made or did not make 
with respect to the appeal, the AAO is precluded from determining what obligation Ms. had, 
if any, with regards to properly and timely filing an appeal. Overall, the petitioner has failed to establish 
that the AAO erred in finding its affidavit insufficient under the Lozada requirements. 
Alternatively, the petitioner asserts on motion that the application of the Lozada requirements should be 
flexible, and that there is no need to comply with Lozada when the record itself demonstrates the 
legitimacy of the ineffectiveness claim. The petitioner cites to Rodriguez-Lariz, 282 F.3d 1218 (9th Cir. 
2000); Castillo-Perez, 212 F.3d 518 (9th Cir. 2000); Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir. 
2000); and Ontiveros-Lopez, 213 F.3 1121 (9th Cir. 1999)to support this assertion. 
However, the petitioner cites only to cases arising out of the 9th Circuit, which have no binding 
precedential authority over the instant case. The AAO is not required to accept determinations by one 
circuit court of appeals as binding throughout the United States. See Matter of Anselmo , 20 I&N Dec. 25, 
31 (BIA 1989); cf Matter of K-S-, 20 I&N Dec. 715, 719 (BIA 1993). In contrast, the precedent 
decisions of the Board of Immigration Appeals (BIA ), which decided Matter of Lozada, are binding on all 
USCIS employees and officers in the administration of the immigration laws. 8 C.F.R. § 1003.1(g); 8 
C.F.R. § 103.3(c). See also Matter of Assaad, 23 I&N Dec. 553, 559 (BIA 2003) (reaffirming the 
application of Matter of Lozada in claims of ineffective assistance of counsel. In a footnote, the BIA 
acknowledged that some courts have taken a "broad" view of the Lozada requirements, but stated that that 
"[w]e will apply such circuit law as is appropriate in each circuit"). 
The AAO finds the above-cited 9th Circuit cases unpersuasive to support the petitioner ' s proposition that 
the AAO could or should waive compliance with the Lozada requirements in the instant case. In the 
above 9th Circuit cases, the court explained that the Lozada factors are "intended to ensure both that an 
adequate factual record exists for an ineffectiveness complaint and that the complaint is a legitimate and 
substantial one." Rodriguez-Lariz 282 F.3d at 1226-7; Castillo-Perez, 212 F.3d at 526; Escobar-Grijalva, 
206 F.3d at 1335 (waiving strict compliance with the Lozada factors when the facts are plain on the face 
of the administrative record); Ontiveros-Lopez, 213 F.3d at 1139 (remanding case back to the BIA to 
develop the record of proceeding). Here, there is not an adequate factual record for the AAO to assess the 
legitimacy and substance of the petitioner's ineffectiveness complaint, especially where the petitioner's 
affidavit lacked essential information regarding the agreements and representations former counsel made 
or did not make to the petitioner with respect to the appeal and where the administrative record does not 
plainly demonstrate the legitimacy of the petitioner's claim of ineffective assistance of counsel. 
Contrary to the petitioner's claims, the administrative record does not "clearly demonstrates the 
legitimacy of the effectiveness claim." Again, the AAO emphasizes that the record is unclear as to what 
obligation Ms. had, if any, with regards to properly and timely filing the appeal, particularly 
considering the scope and effective dates of the first and second retainer agreements . On motion, the 
(b)(6)
NON- PRECEDENTDEC~ION 
Page 8 
petitioner asserts that the AAO's reliance on the date of signature of the second retainer agreement was 
"preposterous," but failed to further explain this assertion or support it by any pertinent precedent 
decisions . Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec . 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm 'r 1972)). 
For the foregoing reasons, the petitioner failed to establish that the AAO erred in determining that the 
petitioner failed to establish an ineffective assistance of counsel claim. The petitioner ' s motion fails to meet 
the requirements of a motion to reconsider pursuant to 8 C.F .R. § 103 .5( a)(3 ). 
Finally, the petitioner's motion does not meet the requirements of a motion to reopen. The regulation at 8 
C.F.R. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts to be provided 
in the reopened proceeding and be supported by affidavits or other documentary evidence." Based on the 
plain meaning of "new," a new fact is evidence that was not available and could not have been discovered 
or presented in the previous proceeding. 4 
With the instant motion, the petitioner submits another affidavit regarding its claim of ineffective 
assistance of counsel, as well as copies of previously submitted documents regarding the beneficiary's 
eligibility as an outstanding professor. However, the petitioner's newly submitted affidavit and 
supporting documentation do not contain any facts that could be considered "new ." The petitioner failed 
to explain why such documentation was not available and could not have been discovered or presented in 
prior proceedings, particularly since the petitioner has made the same assertions of ineffective assistance 
of counsel in its three prior motions. 
With particular respect to the petitioner 's latest affidavit, the petitioner does not attest to any facts that 
could be considered "new ." As stated supra, a "new" fact is evidence that was not available and could 
not have been discovered or presented in the previous proceeding. The petitioner's latest affidavit seeks 
to provide more details regarding its prior agreement with former counsel with respect to the untimely 
appeal filed in 1999. The latest affidavit does not offer any new facts that were not available and could 
not have been discovered or presented in the previous proceeding. 
For the foregoing reasons, the petitioner's motion fails to meet the requirements for a motion to reopen at 8 
C.F.R . § 103.5(a)(2). 
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 prior decision. In the current proceeding , the 
petitioner has not established that the AAO committed errors of law or policy in its August 6, 2013 
4 The word "new" is defined as "1. having existed or been made for only a short time . . . 3. Just 
discovered , found, or learned <new evidence> .. . " Webster's II New Riverside University Dictionary 792 
(1984) (emphasis in original). 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 9 
decision, nor has the petitioner provided any new facts. Therefore, the petitioner's instant motion does 
not meet the requirements of a motion to reopen and reconsider. The motion will be dismissed. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 ofthe 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 motion to reopen and reconsider is dismissed. The petition remains denied.