remanded O-1B Case: Art

US. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: LIN 05 800 54950 Office: NEBRASKA SERVICE CENTER Date: FEB 1 9 2009 
IN RE: 
Petition: 
 Petition for a Nonirnmigrant Worker under Section lOl(a)(lS)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. 3 I lOl(a)(lS)(O)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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 office. 
1 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
LN 05 800 54950 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa due to 
abandonment. The petitioner subsequently filed a motion to reopen, The director granted the petitioner's 
motion, but affirmed his decision to deny the petition. The matter is now before the Administrative Appeals 
Office (AAO) on appeal. The AAO will withdraw the director's decision and remand the matter to the 
service center for Mher action and consideration. 
The petitioner is a university and seeks to continue to employ the beneficiary as a part-time lecturer in its art 
department. The beneficiary was previously approved to work for the petitioner in this position in H-1B status 
from January I, 2004 until May 3 1,2005. On May 31,2005, former counsel for the petitioner electronically filed 
the instant petition seelung to classify the beneficiary as an 0-1 nonimmigrant pursuant to section 
10 1 (a)(l5)(0)(i) of the Immigration and Nationality Act (the Act), as an alien of extraordinary ability in the arts. 
The director issued a request for additional evidence (WE) on July 19,2005, granting the petitioner 12 weeks to 
submit the required initial evidence for 0-1 classification and other documentation required for the adjudication 
of the petition. On February 16, 2006, the director denied the petition due to abandonment in accordance with 8 
C.F.R. 5 103.2(b)(13). The director advised the petitioner that it could file a new application with a new fee or, if 
it could establish that the denial due to abandonment was in error, a motion to reopen pursuant to 8 C.F.R. 
6 103.5(a)(2). 
On July 2, 2007, represented by new counsel, the petitioner filed a late motion to reopen and requested that the 
30-day time limit within which to file the motion be equitably tolled due to ineffective assistance of counsel. On 
motion, the petitioner stated that it had retained former counsel to prepare and file a petition to extend the 
beneficiary's H-1B status. Current counsel for the petitioner maintained that the 0-1 petition was filed without the 
petitioner's knowledge or consent, and that the petitioner and beneficiary remained unaware that an 0-1 petition 
had been filed until current counsel requested the file from U.S. Citizenship and Immigration Services (USCIS) 
and reviewed it in April 2007. 
The petitioner also submitted evidence that it had executed documents to be submitted for the H-1B extension in 
June 2005 and asserted that former counsel took no action with regard to the H-IB extension.' In addition, the 
petitioner and counsel outlined in detail the steps taken by the beneficiary and petitioner to determine the status of 
the beneficiary's case, the alleged inaction of former counsel, and the misleading statements allegedly made by 
former counsel regarding the true status of the petition. Counsel provided evidence that a complaint had been 
filed with the Missouri Supreme Court's Chief Disciplinary Counsel regarding former counsel's alleged 
1 
Neither the petitioner nor the director appear to be aware that former counsel did in fact file an H-1B 
petition. USCIS records indicate that former counsel for the petitioner late-filed the H-IB extension on the 
beneficiary's behalf while the instant 0-1 classification petition was pending. The petition and supporting 
documentation signed by the petitioner on June 21, 2005 were filed with the Nebraska Service Center on 
September 27, 2005 and assigned receipt number LIN 05 273 51466. The petition was denied due to 
abandonment on June 15,2006, based on the petitioner's failure to respond to an RFE issued on February 17, 
2006. The AAO has reviewed the record of proceeding for the H-1B extension filing. The RFE and denial 
notice were both addressed to former counsel, who did not pursue a motion to re-open. 
LIN 05 800 54950 
Page 3 
professional misconduct, evidence that former counsel was advised of the complaint, and evidence that former 
counsel had been referred for formal disciplinary proceedings as a result of the complaint. 
Counsel requested that the petitioner be granted equitable tolling and that the motion to reopen be granted. 
Counsel &her requested that USCIS "fashion an equitable remedy, restoring Petitioner to a position as favorable 
as that which existed prior to the ineffective assistance of counsel rendered." Specifically, counsel requested that 
the petitioner be granted the opportunity to submit an H-1B extension on behalf of the beneficiary. 
Acknowledging the "unusual circumstances" present in this matter, the director granted the petitioner's late 
motion to reopen the proceeding. The director acknowledged the petitioner's request for equitable tolling due 
to ineffective assistance of counsel, but found that the petition may not be approved for the following reasons: 
It is more than once acknowledged in this Motion and its supporting documents that 
petitioner's former counsel . . . filed the instant petition without the knowledge or consent 
either of the petitioner or of the beneficiary. Therefore, counsel appears to request with this 
Motion that a petition, which was fraudulently filed in the first place, should be reopened and 
approved in order to grant some sort of equitable relief to the petitioner. Even though the 
petitioner and the beneficiary may not have been responsible for this, the fact remains that the 
instant petition was improperly filed. There is no provision in the Code or in the statute for 
the rehabilitation of a fraudulently-filed nonimmigrant visa petition in order to grant equitable 
tolling, or any other relief, to a petitioner. 
Counsel for the petitioner subsequently filed the instant appeal. On appeal, counsel for the petitioner contends 
that the instant 0-1 classification petition was erroneously or negligently filed by former counsel, but not filed 
fraudulently as determined by the director. Counsel asserts that there is no evidence that former counsel 
sought to perpetrate fraud on USCIS, and that any fraud committed occurred with respect to former counsel's 
misrepresentations to the petitioner and beneficiary. Counsel contends that there can be no doubt that the 
actions of former counsel constitute gross error, ineffective legal assistance and misconduct. 
Counsel notes that "it is difficult to understand why the Service has reasoned that the 1-1 29 application cannot 
be reopened because it was not the proper application to have been filed." Counsel fiu-ther asserts that it is 
unclear what remedy the director has granted, noting that "the very purpose of equitable tolling is to restore 
the petitioner to a position as favorable as that which existed prior to the harm caused petitioner due to 
ineffective assistance of counsel, which includes instances where counsel filed the wrong application on a 
Petitioner's behalf." Counsel emphasizes that the director provided no legal authority for his conclusion that 
USCIS is barred from re-opening the instant petition, and further notes that the director's decision provides no 
analysis of the facts of this matter or the case law cited extensively in the motion to reopen. 
Counsel concludes by once again requesting that the petitioner be granted equitable tolling and that the 
motion to reopen be granted in order to allow the petitioner an opportunity to submit an H-1B extension on 
behalf of the beneficiary. 
LIN 05 800 54950 
Page 4 
Upon review, the AAO will withdraw the director's decision dated August 17, 2007. The petition will be 
remanded to the director, who is instructed to grant the petitioner's motion to re-open. 
Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) 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 representations 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 allegations 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), ard, 857 F.2d 10 (1st Cir. 1988).~ 
The evidence of record shows that all procedural requirements set forth in Matter of Lozada have been met. 
Therefore, the director's course of action should have been to re-open the matter and provide the petitioner 
the opportunity to remedy the results of the ineffective assistance of counsel. The AAO concurs with counsel 
that the director's decision to grant the motion, only to immediately deny the petition as fraudulently filed was 
improper and not legally supported. 
The instant petition was denied due to abandonment, and the petitioner has established that the abandonment 
was due to the ineffective assistance of counsel. Therefore, the director is instructed to re-open the matter, and 
to reissue the request for evidence that was initially sent to former counsel on July 19, 2005. The director, in 
his discretion, should determine the form of relief to be granted so as to allow the petitioner and beneficiary 
the opportunity to pursue the H-1B extension it sought to timely file in May 2005. 
2 
 On January 7, 2009 the Attorney General issued a precedent decision relating to ineffective assistance of 
counsel, superseding Matter of Lozada. See Matter of Compean, et al., 24 I&N Dec. 710 (A.G. 2009). In 
Compean, the Attorney General held that the Constitution affords no right to counsel or effective assistance of 
counsel to aliens in immigration proceedings under the Sixth Amendment or the Due Process Clause of the 
Fifth Amendment. Id. at 71 1-27. Although the Act and regulations also do not afford aliens a right to 
effective assistance of counsel, USCIS may, in its discretion, reopen proceedings based on the deficient 
performance of an alien's prior attorney. Id. at 727. Compean establishes three elements of proof and six 
documentary requirements that an alien must meet to prevail on a claim of deficient performance of counsel. 
Id. Although Compean addresses deficient performance of counsel claims in the context of motions to reopen 
removal proceedings, the decision also applies to claims of deficient performance raised on direct review. Id. 
at 728 n.6. 
Despite this change, the AAO will evaluate this appeal under Matter of Lozada, the administrative precedent 
that was applied by the director and argued by counsel on appeal. Under general rules of legal construction, a 
substantive, non-curative, adverse change in administrative rules is not to be applied retroactively unless the 
language of both the administrative rule and the statute authorizing the rule requires such a result. Uzuegbu v. 
Caplinger, 745 F.Supp. 1200, 1215 (E.D. La. 1990). 
Page 5 
Finally, it is noted that on motion, counsel for the petitioner suggested that the petitioner should be permitted 
to substitute an H-1B supplement in place of the 0-1 classification supplement submitted by former counsel 
in order to correct the instant petition. However, as the H-1B extension petition was in fact filed by former 
counsel, the AAO notes that the director has the discretion to re-open LIN 05 273 51466 on Service motion in 
order to issue a favorable decision. See 8 C.F.R. 103.5(a)(5). The AAO has requested this petition and will 
return it to the director for review on remand. 
Since it has been established that the late filing of the H-1B petition and the denial due to abandonment were 
due to the ineffective assistance of counsel, the director may reasonably excuse the untimely filed petition and 
adjudicate it on its merits. The regulations specifically allow the director to forgive the failure to file an 
extension petition prior to the expiration of the previously authorized status under these circumstances. See 8 
C.F.R. 5 214.1(~)(4). Such action would allow the petitioner the opportunity to withdraw the instant 0-1 
petition, which it never sought to file, and would restore the beneficiary to his previous position. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing discussion. If the new decision is adverse to the petitioner, the 
director shall certify the decision to the AAO for review.