dismissed EB-1B Case: Research

(b)(6)
DATE : AUG 0 6 2013 
INRE: Petitioner: 
Beneficiary : 
OFFICE: TEXAS SERVICE CENTER 
U.S. Departm ent of Homeland Security 
U.S. Citizenship and Immi gration Services 
Admini strative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 2052 9-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § ll53(b)(l)(B) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclosed please find the decision of the Admini strative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construction s of law nor establi sh 
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.P.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Acting Chief , Admini strative Appeals 
Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition and the matter is now before the Administrative Appeals Office (AAO) on motion. 
The motion will be granted, the previous decision of the AAO will be affirmed, and the petition 
will remain denied. 
The petitioner has previously filed a total of two appeals and three motions with the 
Administrative Appeals Office (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 
February 19, 2013. The matter is once again before the AAO on a combined motion to reopen 
and reconsider. 
The director denied the petitiOn on May 8, 2009 on multiple grounds, concluding that the 
petitioner failed to establish the following: (1) that the l:Jeneficiary 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. 1 
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 then filed another motion to reopen or reconsider on June 14, 2012, with which 
the petitioner submitted new documents to support its claims of ineffective assistance of counsel, 
including, inter alia, an affidavit from the petitioner explaining its claim of ineffective assistance 
of counsel, the petitioner's complaint to the New Jersey Bar Association which was served upon 
1 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 
the former attorney, and 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 and reaffirmed its previous decision and the denial of the petition, concluding that the 
petitioner still failed to establish a claim of ineffective assistance of counsel because the 
petitioner failed to submit the representation agreement between the petitioner and prior counsel. 
The AAO also concluded that the petitioner failed to establish that its first appeal was timely 
filed, and that the AAO abused its discretion in determining that the petitioner should not be 
excused from its untimely filing. 
The petitioner 
now files the instant 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 asserts that the AAO misapplied 
Matter of Lozada, 19 I&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 also submits additional arguments 
regarding the merits of the beneficiary's eligibility as an outstanding professor. In support of the 
instant motion, the petitioner submits for the first time the retainer agreements between the 
petitioner and its former counsel, as well as new documents pertaining to the beneficiary's 
eligibility as an outstanding professor which the petitioner claimed its former counsel failed to 
submit. 
The regulation at 8 C.P.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. 2 
Furthermore, 8 C.F.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. 
The AAO finds that the instant motion meets the requirements of a motion to reconsider. The 
petitioner has established that the AAO erred in specifically requiring the representation agreement 
between the petitioner and its former counsel as required evidence under Matter of Lozada. 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 
2 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-PRECEDENT DECISION 
Page4 
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. !d. at 639. Matter of Lozada does not require the 
actual representation agreement between the petitioner and its former counsel. 3 
The motion also meets the requirements of a motion to reopen. The petitioner has submitted new 
evidence containing new facts, to wit: the retainer agreements between the petitioner and its 
former counsel. The retainer agreements could not have been presented in prior proceedings 
because they are not required evidence and the petitioner was not previously put on notice to 
submit these particular documents. However, the AAO ·finds that the new documents pertaining 
to the beneficiary's eligibility as an outstanding professor submitted with the instant motion 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 two prior motions. Therefore, the new documents pertaining to the 
beneficiary's eligibility as an outstanding professor will not be considered or discussed further. 
Because the instant motion meets the requirements of a motion to reopen and reconsider, the 
AAO will grant 
the motion. Upon review of the record and for the reasons discussed herein, the 
AAO will affirm its previous decision and the denial of the petition. 
The AAO finds that the petitioner has failed to establish a claim of ineffective assistance of 
counsel. As stated above, in order to establish a claim of ineffective assistance of counsel 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. 
!d. A thorough review of the petitioner's affidavit reflects that it fails to set fmth 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 petitioner's affidavit states, in pe1tinent part: 
In regard to one such alien, [the beneficiary], was hired in 2007 to 
prepare and file an 1-140 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 
3 While the actual representation agreement between the petitioner and its former counsel is not required 
evidence under Matter of Lozada, it is nevertheless valuable as corroborating evidence. 
(b)(6)
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NON-PRECEDENT DECISION 
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 .... 
The petitioner's affidavit does not provide any detail on the agreement that it entered into with 
former counsel regarding what actions she would or would not take with respect to the petition, 
the RFE, and the filing of the first appeal to the AAO. The petitioner's affidavit only states in 
conclusory terms that former counsel was ineffective because she was furnished 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 fails to explain what representations counsel did or did not make to the petitioner 
regarding the petition, the RFE, and the appeal. 
With particular respect to the petitioner's claim that was ineffective by failing 
to submit the appeal with the proper filing fee within the statutory time, the AAO notes for the 
record that the petitioner entered into two retainer agreements with ] one on 
May 7, 2007 that was specifically limited to the petitioner's "EB-1 application for adjustment of 
status for [the beneficiary]," and one on June 10, 2009 that was specifically limited to the 
following purpose: "Prepare and file appeal of denial of I-140 for [the beneficiary]." Notably, 
both retainer agreements contain the following clause: "If the USCIS or the Immigration Court 
rules against client, the firm will make a new decision as to whether to represent client in an 
appeal to the Administrative Appeals Unit (AAU) or the Board of Immigration Review 
(hereinafter 'BIA'). The firm reserves the right to end its representation at this point." 
Considering that the first retainer agreement's scope did not include the filing of an appeal , that 
the first retainer specifically advised the petitioner that would make a new 
decision as to whether to represent the petitioner in an appeal to the AAO, and that the petitioner 
and did not 
enter into the second retainer agreement for the specific purpose of 
filing an appeal until June 10, 2009, the record is unclear what obligation had, 
if any, with regards to properly and timely filing an appeal. Here, the date that the petitioner 
entered into its second retainer for the specific purpose of filing the appeal is significant. The 
petitioner did not sign the second retainer until June 10, 2009, which was 33 days from May 8, 
2009, or the last day in which the petitioner could have timely filed the appeal. The fact that the 
petitioner did not sign the retainer agreement with until the last possible day to 
file the appeal undermines the petitioner's claim that was "inept" by failing to 
file a timely appeal. Again , the petitioner has not provided any explanation as to what specific 
agreement it and _____ _ -- ~ J J entered into with respect to whether an appeal would be filed, 
what actions would be taken with respect to the appeal, and what representations 
_ made or did not make to the petitioner with regards to filing the appeal. Without such 
explanation, and considering the above, the petitioner has failed to establish its claim of 
ineffective assistance of counsel. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
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, counsel has not contested the AAO's finding that the first appeal was 
untimely filed, nor has counsel provided any explanation for the deficiencies in the record other 
than claiming that they were caused by ineffective assistance of counsel. 
As the petitioner has not established an ineffective assistance of counsel claim, the AAO concurs 
with its prior decision that the appeal was untimely filed, and that the untimely appeal did not 
meet the requirements of a motion to reopen or reconsider when filed. 
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 ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The AAO's decision dated February 19, 2013 is reaffirmed. The petition remains 
denied.