Liu & Associates Won EB-1A I-140 Case on Appeal

On January 4, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by Liu & Associates and approved the Eb-1A I-140 petition that was originally denied by the USCIS Texas Service Center.*   

The Eb-1A I-140 petition was originally filed with USCIS in November 2008. The petitioner/beneficiary was a materials scientist seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met at least three criteria as required by 8 CFR §204.5(h)(3).

In April 2009, USCIS denied the Eb-1A I-140 petition without requesting for additional evidence (RFE). In its decision, USCIS concluded that the petitioner/beneficiary meets the criterion of participation as a judge of the work of others in the same or an allied field of specialization. This criterion was supported by well documented evidence that the petitioner/beneficiary was constantly called upon by well-respected journals to serve as a peer reviewer. USCIS found, however, the petitioner/beneficiary did not meet the criterion of original scientific contribution of major significance and the criterion of authorship of scholarly articles. Based on this finding, USCIS denied the petition.

In review of the USCIS decision, we found that it contains both mistakes of law and mistakes of fact. Under 8 CFR §103.3(a)(2), the petitioner can appeal a USCIS decision before AAO within 30 days after the final decision was made by USCIS.  The petitioner/beneficiary decided to bring the case to AAO.  The appeal involved a number of legal issues and factual disputes.

As a matter of law, an I-140 immigration proceeding follows the “preponderance of the evidence” standard of proof. This means that if the petitioner/beneficiary’s claim is “probably true” or “more likely than not,” then the burden of proof would be satisfied.  In its decision, however, USCIS alleged that “the petitioner has failed to clearly establish eligibility under section 203(b)(1)(A) of the Immigration and Nationality Act.” On the appeal, we pointed out that while the petitioner/beneficiary has the burden of proof in providing evidence showing eligibility, the standard of proof in terms of documentary evidence as required and imposed by law should be “probative” evidence, not “clear” evidence.  There is a distinct difference between burden of proof and standard of proof.  Given the incorrect application of the standard of proof, there is material error in the USCIS decision.
 
On appeal, we also pointed out that the USCIS decision failed to consider the independent expert opinion about the significance of the petitioner/beneficiary’s original contribution, and the material facts that abundantly support the experts’ statements. While USCIS acknowledged the expert testimonial letters attesting to the petitioner/beneficiary’s achievements and a selection of articles co-authored by the petitioner/beneficiary, it held that the evidence does not indicate that his published articles have garnered national or international attention, for example by being widely cited by independent researchers. This finding ignored the evidence of large number of citations to the petitioner/beneficiary’s work from researchers worldwide. 

In its decision, USCIS only counted the citations of the petitioner/beneficiary’s first-authored papers, even excluding his co-first authored paper. This approach is not supported by any AAO decisions, administrative regulations, or statutory laws. It failed to consider the collaborative nature of modern scientific research that involves team work, in which more than one team member may have contributed significantly to the published papers, but only one author can usually be listed as first-author. As such, the issue is not whether the petitioner/beneficiary is the first author of the published papers; rather, the issue is whether the petitioner/beneficiary’s contribution to the published papers is significant. The record of evidence shows that although the petitioner/beneficiary is not the leading author of his mostly cited papers, his actual contribution to the co-authored papers is significant. It is arbitrary to discredit the significance of his contribution to the co-authored papers. We therefore requested AAO to consider the petitioner/beneficiary’s publication and citation record as a whole to meet his burden of proof. 
AAO agreed with our arguments and considered the fact that modern scientific research endeavors routinely involve collaborative efforts, and found “no statutory, regulatory, precedential, or evidentiary basis to conclude that USCIS should not assign weight to collaborative scientific research such as the petitioner’s.” AAO also considered the fact that although the petitioner/beneficiary was not the first author of his mostly cited work, he played an integral role in the jointly published research and he made significant contributions to the co-authored papers. Based on these findings, AAO held that the petitioner/beneficiary meets the criterion of original contribution of major significance and the criterion of authorship of scholarly articles. Accordingly, AAO sustained our appeal and approved the case.
 In recent years, USCIS has made good efforts to improve its adjudication of I-140 petitions. The majority of EB-1A I-140 cases we filed were adjudicated properly and approved with or without requesting for additional evidence. But from time to time, we have received USCIS decisions that are arbitrary and contain material mistakes of law and/or facts. When this happens, the petitioner/beneficiary has two options: appeal the case before AAO or file a new petition in the same classification. Which option is better is not always immediately apparent – as in many cases, a seemingly simple question may demand sophisticated answers.  This should be a topic of another article.
* The AAO decision can be read at http://niwus.com/files/EB-1A_AAO_20100104.pdf.

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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。

Christina T. Le 律师，法学博士 (J.D.，University of Houston Law Center)、理学学士(B.S., Northwestern University)，德克萨斯州最高法院执照，曾担任U.S. Department of Justice驻Houston移民法庭Attorney Advisor，以及Houston Business & Tax Law Journal编辑。

Sabrina Ong律师，法学博士 (J.D., Michigan State University College of Law)、文学学士 (B.A., Oklahoma State University)，密西根州最高法院执照，曾任Michigan State University Law Review编辑，密西根上诉法院Prehearing Research Attorney，现任刘宗坤律师事务所专业移民律师。

Liu & Associates, PLLC
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Houston, Texas 77036
Tel： (800) 878-1807
(713) 974-3893
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Email: zliu@niwus.com
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