Recently, I was asked to help on a last minute EB-1 appeal. After researching the case, we came across the fact this individual had already been approved for an O-1 visa — for 10 years! The AAO adjudicator told the client that he was lying and that the USCIS finding that he was eligible for an O-1 was wrong. Based one…nothing.
This is the section of the appeal we wrote concerning this point.
4. In the instant case, Dr. XXX was previously awarded an O-1 visa as an individual of extraordinary ability in the arts or sciences. See, initial AAO Appeal Decision dated 26 Jan 2015, page 4. While there is nothing requiring USCIS to approve petitioner because of a prior approval, ere is a strong precedent to remain consistent with the application of law and fact. In the appeal decision dated 26 Jan 2015, the Appeals Examiner repeatedly sites to errors of law and fact in the original adjudication of the O-1. There is simply nothing provided to support the utter and complete discount of the prior grant of “extraordinary” status. While this, itself may not be enough to cause an EB1 to be valid, it is unreasonable that such a prior decision should not:
a. Be useable by the petitioner as a demonstration that, when all the factors are taken in the aggregate (See, Kazarian at 1117; Visinscaia v. Beers, 4 F Supp 3d 126, 131-132 (D.D.C, 2013) he meets the extraordinary standard, and
b. As evidence of either:
i. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
ii. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
Either of these 8 C.F.R. §204.5(h)(3), or both, are appropriate for an O-1 designation because for 4(b)(i) above, the O-1 visa is a recognized document awarded only to those who have extraordinary ability; for 4(b)(ii), the O-1 visa constitutes affirmative evidence that the United States has recognized the extraordinary nature of the petitioners abilities in the arts, sciences, or other professional field.
5. It should also be noted that the O-1 visa is only awarded to those individuals who, other than entertainers or artist, meet the extraordinary standard no less stringent that EB-1. Extraordinary ability in science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.” 8 CFR 214.2(o)(3)(ii). By USCIS awarding Dr. XXX an O-1 visa, they have previously validated the fact he has risen “to the very top of the field of endeavor.” Indeed, Dr. XXX held this visa for 10 years.
6. The Appeals Examiner argues that the AAO is not bound by USCIS determinations at a lower level, and therefore, the AAO is free to ignore the prior O visa awarded to the petitioner. See, page 4, last paragraph.
7. This is in error, as it creates an impossibly chaotic system where decisions of USCIS are randomly overturned, without any express reason, by the AAO. As here, the Appeals Examiner simply determined the O visa was in error, and gave absolutely zero supporting justification for that holding.
8. The Appeals Officer further cites to Glara Fashion Inc. v. Holder, 11 CIV. 889 (PAE) 2012 WL 352309 *7 (S.D.N.Y. 2012). However, this case only gives the AAO the right to modify earlier USCIS holdings when there is a clear error at law in the prior decision, and that law has been articulated to the petitioner (who has had a chance to rebut the same). Further, Glara Fashion states, from the government’s own brief, that “aribtrariness” may be inferred from an inexplicable departure from a previous agency holding. (See, Glara at 20). Nothing was submitted that showed clear error, and even if the Appeals Officer had seen a clear error of law, Dr. XXX would have had the opportunity to rebut the error and argue the case before a finding that his O visa was given in error. See, 8 C.F.R. 103.5(5)(ii) which states: Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.
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