LPY Law Group Wins Alien of Extraordinary Ability (EB-1A) I-140 Case on Appeal

On January 4, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group 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 consistently called upon by well-respected journals to serve as a peer reviewer. USCIS found, however, that 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 most-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 most-cited work, he played an integral role in the jointly published research and 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. However, 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.

* Click Here to read the AAO Decision.