联邦法院推翻移民局的Eb-1A决定

In a recent decision in Fethullah Gülen v. Michael Chertoff, the Federal District Court in the Eastern District of Pennsylvania overruled a USCIS and AAO denial of EB-1A petition filed by an Islamic scholar. Although many findings in this decision are case specific, this decision provides useful reasoning on major issues of general nature in EB-1A petition. For instance, how to properly define the beneficiary’s area of expertise? Narrowly or broadly? How to meet the criterion of authorship of scholarly articles? How to determine that the beneficiary will continue to work in his/her field of expertise? etc.

Fethullah Gülen, born in Turkey, is a modernist Islamic scholar and the author of over 60 books. His work has stressed the importance of interfaith dialogue and he has met with a number of prominent Jewish and Christian leaders, including Pope John Paul II. In 2008 he was voted the #1 public intellectual in the world by Foreign Policy magazine. His work is the basis of the “Gülen movement” and his writings are widely cited and discussed by other scholars.

In November of 2006, Fethullah Gülen filed a form I-140 seeking classification as an Alien of Extraordinary Ability with a request for Premium Processing. His case was not adjudicated within the appropriate time frame and a Request for Evidence was issued in August of 2007. The RFE asked for: Evidence as to how Gülen’s 13 recommenders had gained their knowledge of his work; Documentary evidence establishing the importance of photos taken of Gülen at major international conferences and with the leading religious figures, including Pope John Paul II; Supporting documentation on Gülen’s publications and other works written about him. Gülen responded by submitting the required documentation, and in November of 2007 USCIS denied his petition. The following month, Gülen filed an appeal with the Administrative Appeals Office (AAO) on the grounds that the denial was “arbitrary and capricious [and] did not correctly apply the law.” AAO dismissed the appeal.

USCIS, AAO and Judicial Procedure

The standard procedure for adjudication of an I-140 generally has only two authoritative bodies: USCIS and AAO. In the standard timeline, an applicant submits his/her case to USCIS, which assigns each petition to an individual adjudicator. The adjudicator may approve the case or request further evidence; outright denials are rare. Upon receipt of further evidence, the adjudicator may either approve or deny a petition. In the case of a denial, the applicant may appeal the decision to the Administrative Appeals Office. If this appeal is rejected, the applicant may seek federal review, but in many cases the federal courts dismiss the petition for judicial review due to lack of jurisdiction.

In I-140 cases, federal jurisdiction is strictly limited under the REAL ID Act of 2005. The relevant exception concerns instances where USCIS has ruled against its own standards or abused its discretion. A few examples of this include Buletini v INS, Muni v INS, and Grimson v INS. Since Gülen argued that USCIS and AAO have acted in an arbitrary and capricious manner in their decisions, federal review is permissible under the narrow parameters of the REAL ID Act.  Specifically, the federal court, in its final decision, ruled that the action of USCIS and AAO constituted an abuse of discretion.  The federal statute clearly states that a visa must be issued to an alien who meets the statutory qualifications. Based on the sheer volume of evidence in support of Gülen’s petition, the case demanded a review of the AAO’s decision.

Definition of "Area of Expertise"

The Alien of Extraordinary Ability classification rests on several points; let us consider each of them in turn. The first step is, naturally, determining the alien’s area of expertise. This was one of the issues that complicated this case from its initial filing to its final appeal. Gülen is the author of more than 60 books that deal with: religion, in particular Islam but also the role of various monotheistic religions in society; politics; theology; art; science; education; and social issues. He has served as a teacher and lecturer and he has met with many prominent religious leaders of Islam, Judaism and Christianity to promote interfaith dialogue. Gülen’s work therefore does not fit neatly into any of the classifications offered in the Eb-1A standard (arts, sciences, education, business or athletics). Confusion as to the appropriate designation for Gülen’s area of expertise was perhaps most obvious on his initial filing, in which the adjudicator classified him as a “clergyman.” This classification is patently false; although much of Gülen’s work deals with religion, he is not an imam and does not serve any specific ministry. This point was further muddled in the AAO decision, which designated his area of expertise as “education.” While Gülen has served as a teacher and written about education, this designation describes only a portion of his area of expertise.

In a case such as Gülen’s, there is simply no perfect fit in the broad areas of expertise outlined in the Eb-1A standards. Rather than using discretion to fully evaluate the scope of Gülen’s work, both USCIS and AAO chose to deny the petition. This sticky point regarding classification of Gülen’s area of expertise can be clarified by examining standards issued by the Department of Labor, which define “art” or “science” as “any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in that knowledge or skill.” Under these standards, Gülen’s work is clearly admissible under the category of arts and sciences. Major universities generally offer degrees in theology, political science, Islamic studies, and political science, all of which fall into Gülen’s area of expertise. The government’s arguments against Gülen on this point are therefore invalid.

The EB-1A Standards

After the issue of his proper classification has been resolved, the next step is an evaluation of the hard evidence and Gülen’s arguments for the approval of his Eb-1A. The bulk of the case depends on the hard evidence of the alien’s extraordinary ability in the area of arts, sciences, education, business, or athletics. The alien must submit adequate evidence to prove these points, based on the standards of the enabling regulations. If the alien has a one-time achievement of exceptional merit, such as a Nobel Prize, this satisfies the evidentiary requirements and no further documentation in necessary. In the absence of such an achievement, the alien must submit evidence to support 3 of the following 10 criteria:

1) Receipt of a lesser nationally or internationally recognized award
2) Membership in an association in alien’s area of expertise which requires outstanding achievement of their members, as judged by national or international experts
3) Published materials about the alien in professional or major trade publications or other major media
4) Participation as a judge of the work of others
5) Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance
6) Authorship of scholarly articles in the field
7) Artistic exhibitions or showcases
8) Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation
9) High salary or remuneration in relation to others in the field
10) Commercial success in the performing arts

AAO concluded that Gülen met No. 3 and 5 in the above criteria, so for the purposes of analysis we will focus on criterion 6, which AAO claimed Gülen had not demonstrated with his submitted evidence. AAO rejected this evidence on the basis that Gülen’s work did not qualify as “scholarly.” The crux of this issue is therefore how one defines “scholarly.” AAO uses the word in opposition to “popular,” by which it means that work qualifies as scholarly only if it is meant to be read exclusively by other scholars. The court rejects this definition outright, offering among its evidence the Oxford English Dictionary’s definition of scholarly: “pertaining to, or characterizing, a scholar; befitting, or natural to, a scholar; learned, erudite.” By this definition, the nature of the work and not the intended audience is the relevant standard. The court further notes that the USCIS Adjudicator’s Field Manual states that the most persuasive evidence on the scholarly nature of an applicant’s work comes from its reception in the scholarly community. Gülen submitted ample evidence to this effect: his work has been the subject of several academic studies; schools based on his philosophical and theological principles have been founded; his books and articles are used in a number of college and university courses; and extensive citations and recommendations from other scholars in his varying areas of expertise. The court therefore ruled against the government’s arguments on the ground that their claim against the scholarly nature of his work directly contradicts the hard evidence.

Intention to Work in the Same Field

Based on the above, the court ruled that Gülen had clearly established extraordinary ability and that this portion of the government’s ruling must be overturned. However, this is not the only basis for USCIS and AAO to deny Gülen’s petition. AAO had used their argument defining Gülen’s area of expertise as “education” as the basis for their rejection of Gülen’s statement of intention to continue his work in his area of expertise. Gülen submitted a statement of his intention to “continue to advocate and promote interfaith dialogue and harmony between members of different faiths and religions.” AAO argued that since Gülen had made no mention of his intention to continue working in the field of education, this statement was insufficient. Since this argument regarding Gülen’s area of expertise had already been overruled, AAO’s subsequent argument obviously could not stand.

In the federal appeal, the government alleged that Gülen’s statement contained insufficient detail to meet the regulations. This point also involves another characteristic of the Eb-1A classification: no offer of employment is required. The court noted that a detailed description of future work is not warranted based on this point. The court states that, “in the absence of specific employment, few applicants could do more than identify the categories of work they intend to seek.” Gülen’s statement of his intent to continue his work in his varying areas of expertise is therefore sufficient to satisfy the regulatory requirements.

The Alien of Extraordinary Ability classification requires that the alien’s presence in the United States will benefit the nation. This point is clearly subjective and must be argued based on the weight of the evidence. However, AAO and the government did not contend that Gülen had failed to meet this criterion. The court asserts that Gülen’s work in interfaith relations is “certainly a benefit to the United States in these times of tensions between adherents of different religions.”  Based on these findings, the court ruled that AAO had acted contrary to both the law and its own regulations, and overturned the denial.

Fethullah Gülen v. Michael Chertoff is a good example of judiciary review in case of government’s abuse of discretion.  The immigration law gives USCIS power of discretion to determine beneficiary’s qualification for immigration benefits.  However, when USCIS abuses its legal power in adjudication of a petition and when AAO is unable to correct the abuse, a close examination of the case will demonstrate if there are grounds for a request of judicial review.

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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University Schoolof Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了丰富的经验。读者若有移民法律问题，可将简历发往zliu@niwus.com。刘律师会在两个工作日内对您的问题做出免费答复或评估。

白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执照，刘宗坤联合律师事务所专业移民律师。

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