Immigration版 - ZT: USCIS Adjudication guidelines for EB1 petitions |
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发帖数: 329 | 1 I found the informaiton is very uselful, while preparing for my RFE response
to Eb1a petition.
The original document link is as follows:
http://imminfo.com/Library/green_cards/EB/extraordinary_ability
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The USCIS Adjudicator's Field Manual provides the following guidance to
center adjudicators:
(i) Special Considerations Relating to EB-1 Cases.
Certain alien beneficiaries are exempted from the labor certification
application process by virtue of their extraordinary ability, outstanding
research, or positions as international managers and executives. The
discussion below highlights issues that you may encounter in adjudicating
first preference petitions filed on behalf of such alien beneficiaries.
(1) E11 Aliens with Extraordinary Ability - Section 203(b)(1)(A) of the INA.
An immigrant petition filed on behalf of an alien with extraordinary
ability must demonstrate that the alien beneficiary possesses a level of
expertise indicating that he or she has risen to the top of the field of
endeavor.
(A) Evaluating Evidence Submitted in Support of a Petition for an Alien of
Extraordinary Ability. 8 CFR 204.5(h)(3) and (4) describe various types of
evidence which must be submitted in support of an I-140 petition for an
alien of extraordinary ability. In general, the petition must be accompanied
by initial evidence that: (a) the alien has sustained national or
international acclaim; and (b) the alien’s achievements have been
recognized in the field of expertise. This initial evidence must include
either evidence of a one-time achievement (i.e., a major international
recognized award, such as the Nobel Prize), or at least three of the types
of evidence listed in 204.5(h)(3). Submission of the types of evidence noted
in 8 CFR section 204.5(h)(3), while a minimum requirement does not, in
itself, establish that the alien in fact meets the requirements for
classification as an alien of extraordinary ability under section 203(b)(1)(
A) of the INA. There may be cases, however, where the petitioner may in fact
be able to establish the beneficiary’s eligibility by submitting the
minimum types of evidence required. In such cases, there is no need to
request additional evidence. In short, in adjudicating a petition seeking to
have a person classified as an alien of extraordinary ability, the general
rule applies: look at the quality, rather than the mere quantity of the
evidence. In making your determination, bear in mind, again, that 8 CFR 204.
5(h)(3) represents the minimum evidence that may be submitted, and that
meeting this minimum evidentiary requirement will not automatically
establish eligibility. In all cases, the evidence must be evaluated to
determine if it in fact establishes that the alien is extraordinary by
demonstrating that he or she has garnered sustained national or
international acclaim in the field of endeavor.
Certain evidence submitted in support of a petition may overlap with two or
more of the ten criteria set forth in 8 CFR 204.5(h)(3). You must evaluate
the quality of the evidence submitted on a case-by-case basis to determine
whether the evidence submitted satisfies the minimum required to establish
eligibility for E11 classification.
Note that 8 CFR 204.5(h)(4) provides that petitioners may submit “
comparable evidence” to establish a beneficiary’s eligibility in cases
where the standards set forth in 8 CFR 204.5(h)(3) do not apply. In cases
where such comparable evidence is submitted, it is reasonable to require the
petitioner to explain why 8 CFR 204.5(h)(3) does not apply. Examples of
such comparable evidence are provided later in this section.
(B) Self-Petitioners. An I-140 petition filed on behalf of an alien with
extraordinary ability does not need to be supported by a job offer;
therefore, the alien may “self-petition” for the classification. See 8 C.F
.R. 204.5(h)(5). The alien must demonstrate, however, that he or she intends
to continue work in the field of his or her extraordinary ability. Id.
Section 203(b)(1)(A) of the INA, which defines an alien of extraordinary
ability, also requires that the alien’s work substantially benefit
prospectively the United States. Although the regulations do not
specifically define this statutory term, it has been interpreted broadly.
See e.g. Matter of Price, 20 I&N Dec. 953 (Assoc. Comm. 1994) (golfer of
beneficiary’s caliber will substantially benefit prospectively the United
States given the popularity of the sport). Whether the petitioner
demonstrates that the alien’s employment meets this requirement requires a
fact-dependent assessment of the case. There is no standard rule as to what
will substantially benefit the United States. In some cases, a request for
additional evidence may be necessary if you are not yet satisfied that the
petitioner has satisfied this requirement. See Memorandum from William R.
Yates, Associate Director, Operations, HQOPRD 70/2, “Requests for Evidence
(RFE) and Notices of Intent to Deny (NOID)” (February 16, 2005). In all
cases, however, the petitioner must show that the beneficiary intends to
continue work in his or her area of expertise. See 8 CFR 204.5(h)(5).
(C) Additional Adjudication Guidelines. The following provides further
guidelines for adjudicating E11 petitions. While not presenting hard and
fast rules, it may help you evaluate evidence submitted in support of E11
petition. Whether or not a petition is approvable will depend on the
specific facts presented.
˜ The evidence provided in support of the petition need not
specifically use the words "extraordinary." Rather the material should be
such that it is readily apparent that the alien's contributions to the field
are qualifying. Also, although some items in the regulatory lists
occasionally use plurals, as indicated above, it is entirely possible that
the presentation of a single piece of evidence in that category may be
sufficient. On the other hand, the submission of voluminous documentation
may not contain sufficient persuasive evidence to establish the alien
beneficiary’s eligibility. The evidence provided in support of the petition
must establish that the alien beneficiary "is one of that small percentage
who have risen to the very top of the field of endeavor." See 8 CFR 204.5(h)
(2).
˜Remember that an alien may be stronger in one particular evidentiary
area than in others; however, the overall impression should be that he or
she is extraordinary. Remember also that you cannot predetermine the kind of
evidence you think the alien should be able to submit, and deny the
petition if that particular type of evidence (whether one of the types
listed in 8 CFR 204.5(h)(3) or “comparable evidence” under 8 CFR 204.5(h)(
4)) is not there. For example, you may think that if an alien is
extraordinary, there should be published articles about the alien and his or
her work. However, you cannot deny the petition because no published
articles were submitted, if evidence meeting three qualifying criteria has
been submitted that demonstrates he or she is in fact extraordinary.
Approval or denial of a petition must be based on the type and quality of
evidence that is submitted, not on evidence that you think should be there.
˜If you need to request additional evidence, you should provide some
explanation of the deficiencies in the evidence already submitted and if
possible, examples of persuasive evidence that the petitioner might provide
to corroborate the statements made in the petition. If a petitioner has
submitted evidence that he or she believes establishes the alien's
extraordinary ability, merely restating the evidentiary requirements or
saying that the evidence submitted is not sufficient will not give the
petitioner any clear guidance in overcoming the deficiencies.
˜As noted above, under 8 CFR 204.5(h)(5), the beneficiary must intend
to continue in the area of his or her expertise. Note though that there are
instances where it is difficult to determine whether the alien’s intended
employment falls sufficiently within the bounds of his or her area of
extraordinary ability. Some of the most problematic cases are those where
the beneficiary’s sustained national or international acclaim is based on
his or her abilities as an athlete, but the beneficiary’s intent is to come
to the United States and be employed as an athletic coach or manager.
Competitive athletics and coaching rely on different sets of skills and in
general are not in the same area of expertise. However, many extraordinary
athletes have gone on to be extraordinary coaches. In general, if a
beneficiary has clearly achieved recent national or international acclaim as
an athlete and has sustained that acclaim in the field of coaching/managing
at a national level, adjudicators can consider the totality of the evidence
as establishing an overall pattern of sustained acclaim and extraordinary
ability such that we can conclude that coaching is within the beneficiary’s
area of expertise. Where the beneficiary has had an extended period of time
to establish his or her reputation as a coach beyond the years in which he
or she had sustained national or international acclaim as an athlete,
depending on the specific facts, adjudicators may place heavier, or
exclusive, weight on the evidence of the beneficiary’s acclaim as a coach
or a manager.
(D) Letters of endorsement. Many E11 petitions contain letters of
endorsement. Letters of endorsement, while not without weight, should not
form the cornerstone of a successful claim for the E11 classification. The
statements made by the witnesses should be corroborated by documentary
evidence in the record. The letters should explain in specific terms why the
witnesses believe the beneficiary to be of E11 caliber. Letters that merely
reiterate USCIS’ E11 definitions or make general and expansive statements
regarding the beneficiary and his or her accomplishments, are generally not
persuasive. The relationship or affiliation between the beneficiary and the
witness is also a factor to consider when evaluating the significance of the
witnesses’ statements. It is generally expected that an individual whose
accomplishments have garnered sustained national or international acclaim
would have received recognition for his or her accomplishments well beyond
the circle of his or her personal and professional acquaintances. You may
find that certain testimonials written by other individuals working in the
alien’s field of endeavor may be submitted as evidence. In some cases, such
testimonials merely make general assertions about the alien, and at most,
indicate that the alien is a competent, respected figure within the field of
endeavor, but the authors fail to support such statements with sufficient
concrete evidence. These letters should be considered, but do not
necessarily show the beneficiary’s claimed extraordinary ability.
(E) Sustained National or International Acclaim. Under 8 CFR 204.5(h)(3), a
petition for an alien of extraordinary ability must be accompanied by
evidence that the alien has sustained national or international acclaim and
that the alien's achievements have been recognized in the field of expertise
. In determining whether the beneficiary has enjoyed “sustained" national
or international acclaim bear in mind that such acclaim must be
uninterrupted and ongoing. If an alien was recognized for a particular
achievement several years ago, you must determine whether the alien has
maintained a comparable level of acclaim in the field of expertise since the
alien was originally afforded that recognition. An alien may have achieved
extraordinary ability in the past but then failed to maintain a comparable
level of acclaim thereafter. On the other hand, depending on the nature of
the acclaim, a one-time major achievement, such as a Nobel Prize, might
satisfy this requirement, provided it is probative of the fact that the
alien has reached the summit of his occupation. In the absence of such a
major, international recognized award, however, the petitioner may not rely
solely on the alien beneficiary's past achievements to establish the alien's
eligibility for classification as an alien of extraordinary ability under
section 203(b)(1)(A) of the INA. As noted in paragraph (A) above, the
regulations allow the petitioner to provide evidence that the alien
beneficiary has the requisite sustained acclaimed and recognition by
submitting evidence of at least three of the following ten criteria set
forth in 8 CFR 204.5(h)(3).
1. Alien's receipt of lesser nationally or internationally recognized prizes
or awards for excellence in the alien's field (8 CFR 204.5(h)(3)(i)). In
evaluating evidence submitted in support of this criterion, the focus should
be on the alien beneficiary's receipt of the award, as opposed to his or
her employer's receipt of the award. In addition, you should determine
whether the prize or award itself meets the requisite standard of national
or international recognition for excellence. In determining the nature of
the award or prize, relevant considerations would include, but not be
limited to, the number of awardees or prize recipients as well as any
regional limitations on competitors (a provincial award limited to
competitors in that province, for example, might have little national
significance.) Another relevant consideration is that awards with national
recognition will probably be reported in the media. While such media reports
may not focus on the alien, they might be relevant to the degree of
recognition of the award itself.
Note: Scholarships, fellowships and competitive postdoctoral appointments
generally are not the type of "nationally or internationally prizes or
awards for excellence" that would establish that the alien has achieved
sustained national or international acclaim and recognition in the alien's
field of expertise. Similarly, most academic or junior athletic/music awards
would not satisfy this criterion
2. Membership in Associations (8 CFR 204.5(h)(3)(ii)). In order to satisfy 8
CFR 204.5(h)(3)(ii), the petitioner must present persuasive evidence to
establish that the alien’s significant achievements in the field were the
basis for granting the alien’s membership in the association. Membership in
an organization that is based solely on a level of education or years of
experience in a particular field is not sufficient. Paying a fee or
subscribing to an association’s publications is also not sufficient.
Similarly, you should note that membership in certain associations can be a
requirement of an occupation, such as union membership or guild affiliation
for actors. Compulsory membership in an association is not indicative of the
alien’s advanced standing in the field. Thus, for example, mere membership
in a State bar, in the American Bar Association (ABA), or in the American
Immigration Lawyers Association (AILA) should not be considered sufficient,
as lawyers are generally required to be members of a State bar, most members
of the bar are eligible to become ABA members, and most immigration lawyers
may be eligible to join AILA. Rather, to satisfy 8 CFR 204.5(h)(3)(ii), the
petitioner must show that the association’s membership is exclusive, in
the sense that membership is limited solely to those who have been judged by
their peers as having attained outstanding achievements in the field for
which classification is sought. An alien’s election by her professional
peers and colleagues to the National Academies of Sciences and Engineering,
an honorific society that currently generally bases membership nominations
on original research and accomplishment in the field, therefore would likely
be sufficient to satisfy 8 CFR 204.5(h)(3)(ii).
3. Published Material About the Alien (8 CFR 204.5(h)(3)(iii)). To satisfy 8
CFR 204.5(h)(3)(iii), the petitioner should submit evidence of published
material in professional or major trade publications or in other major media
publications about the alien’s contributions to the field that clearly
identifies the circulation and the intended audience of the publication.
Regional publications or publications aimed at a particular ethnic or
language group generally will be sufficient only if the publications are
considered the top publications in the field, or the publications enjoy
national or international circulation and reputation beyond that of the
publications’ intended audience and the material about the alien
beneficiary is published in a section of the publication that is national in
scope. Examples of such qualifying regional publications might include The
Wall Street Journal, the New York Times, the New England Journal of Medicine
, or the Christian Science Monitor. The burden is on the petitioner to
establish that a particular publication is covered by this regulatory
provision.
In addition, in order to satisfy 8 CFR 204.5(h)(3)(iii), the evidence should
establish the significance of the published material submitted as it
relates to the alien’s contributions and how the alien is one of that small
percent who have risen to the very top of his or her field. Articles about
the organizations and projects that the alien beneficiary is affiliated with
or involved in, but that do not mention the alien or only mention him or
her in passing, generally are not persuasive. The alien and his or her
accomplishments should be the focal point of the published material. In
addition, marketing materials created for the purpose of selling the alien’
s products or promoting his or her services are not generally considered to
be published material about the beneficiary. Please note that, absent
further documentation establishing how the alien is extraordinary in a
particular field, mere citations to an alien’s work are not sufficient to
satisfy 8 CFR 204.5(h)(3)(iii).
4. Judge of the work of others (8 CFR 204.5(h)(3)(iv)). Evidence that the
beneficiary has been, or is judging the dissertation work as an external
referee, particularly of a Ph.D. in an area of prominent research or study,
could also be probative of the alien's outstanding ability as a judge of the
work of others for purposes of satisfying 8 CFR 204.5(h)(3)(iv). In
addition, evidence that an alien has been asked to review scientific or
scholarly articles written by others in the field prior to their acceptance
for publication in journals or periodicals that enjoy widespread circulation
and readership in the field of endeavor may satisfy this criteria. You
should bear in mind; however, when evaluating such evidence, that it is
being submitted to establish that the alien has sustained national or
international acclaim as well as recognition in the alien's field of
expertise. It is therefore reasonable for the petitioner to submit an
explanation of the significance of the alien's experience in judging the
work of others in the field.
5. Alien's contributions to the field. (8 CFR 204.5(h)(3)(v). To satisfy 8
CFR 204.5(h)(3)(v), the petitioner must submit evidence of the beneficiary’
s original contributions of major significance to the alien's field of
endeavor. Although funded and published work may be “original,” this alone
is insufficient; you must evaluate whether the work constitutes a major,
significant contribution to the field. Note that, in evaluating such
evidence, a footnoted reference to the alien's work without evaluation, an
unevaluated listing in a subject matter index, or a negative or neutral
review of the alien's work would be of little or no value. On the other hand
, peer-reviewed presentations at academic symposia or peer-reviewed articles
in scholarly journals that have provoked widespread commentary and/or
received acclaim from others working in the field, unsolicited requests for
copies of the alien’s scientific abstracts or published research papers,
entries (particularly a goodly number) in a citation index which cite the
alien's work as authoritative in the field, or participation by the alien as
a reviewer for a peer-reviewed scholarly journal would very likely be
probative of the beneficiary’s ability.
˜Scientific Citations: In the scientific community, citations are
generally required when a researcher uses the research findings of another
scientist as part of their own research. Such citations are, therefore, not
considered to be particularly probative as to whether the alien has
extraordinary ability in the field of endeavor, unless shown otherwise. When
evaluating citations to an alien beneficiary’s work, you must determine
the significance of the alien beneficiary’s original contribution to the
field that resulted in the citation. In some cases, inclusion of a lengthy
list of referenced articles that often accompany published articles might be
probative of the alien’s ability because the alien’s contributions served
as a significant, original “find” that spurred the subsequent references
and citations. Similarly, frequent citation by independent researchers may
demonstrate widespread interest in, and reliance on, the beneficiary’s work
and may serve as persuasive evidence that the beneficiary is authoritative
in the field. For example, published research by others in the field that is
based on, and consistently references and cites, an advanced technology for
monitoring environmental ecosystems developed by the alien beneficiary
would likely be relevant to a finding of extraordinary ability. On the other
hand, published research by others in the field that cites to the alien
beneficiary’s similar research techniques (i.e., cites confirming that the
alien beneficiary’s previous research was also conducted using a 4 ml vial)
, without accrediting any significant research findings to the alien, may
not be probative.
˜Bear in mind that scientific researchers live constantly under the
cloak of potential plagiarism and so must always give credit to other
investigators involved in the same small area of investigation. Such credit
may or may not say anything to the merits of the other scientists' work.
Some of the listings that you may see are simply aids to finding literature
available in the field and not an evaluation of the work. It is for you to
evaluate the evidence submitted to determine whether such citations are an
indication that the alien has the requisite ability.
6. Scholarly Articles. To satisfy 8 CFR 204.5(h)(3)(vi), the petitioner must
present evidence of the alien’s authorship of scholarly articles in the
field, in professional or major trade publications or other major media. The
evidence should establish the significance or value of the published
material and how it has set the alien apart as one of the small percent who
has risen to the very top of his or her field. The most persuasive evidence
in this regard is unsolicited contemporaneous documentation that shows that
independent experts or organizations in the field consider the published
material to be significant or that the beneficiary’s findings or
methodologies have been widely cited or adopted by the industry or
professional community at large. For example, peer-reviewed presentations at
academic symposia or peer-reviewed articles in scholarly journals that have
provoked widespread commentary and /or received acclaim from others working
in the field of endeavor, might satisfy this criterion. On the other hand,
a book by the alien that was published by a "vanity" press, or a poster or
abstract presentation at an academic symposium that garnered little or no
commentary from others involved in the field would be of little or no value.
Likewise, the alien’s internal work product that was created for his or
her employer or its clients as part of the scope of the alien’s employment
is not generally considered to be significant for purposes of satisfying 8
CFR 204.5(h)(3)(vi) (which requires publication of material in professional
or trade publications or major media), unless shown otherwise through
corroborative, independent documentary evidence.
Note: It is significant to note that the March 31, 1998 Report and
Recommendations of the Association of American Universities’ Committee on
Postdoctoral education, set forth (on page 5 of its report) recommended
definition of a postdoctoral appointment. Among the factors in this
definition were the acknowledgement that the “appointment is viewed as
preparatory for a full-time academic and/or research career” and that “the
appointee has the freedom, and is expected, to publish the results of his
or her research or scholarship during the period of the appointment.” (
emphasis added) Thus, this national organization considers publication of a
researcher’s work to be “expected,” rather than a mark of distinction,
among postdoctoral researchers. Note: When scientific citations are
presented as evidence of the alien's publications, please refer to the
discussion in the section on 8 CFR 204.5(h)(3)(v), above.
Note also: Articles that were published in foreign language periodicals
should be accompanied by an English translation sufficient to demonstrate
that the alien beneficiary authored the piece. See 8 CFR 103.2(b)(3).
Obtaining full English translations of published material can be burdensome,
thus you should not request complete translations unless absolutely
necessary to evaluate to quality of the material. In many cases, such an
evaluation of the material can be sufficiently conducted without a complete
translation. The evidence should also show the date that the article was
published and the circulation and readership of the periodical.
Note also: In some cases, such as those involving scientists, this criterion
might be satisfied by a showing of conference presentations, provided such
evidence is indicative of the requisite sustained national or international
acclaim.
7. Display of the alien's work in the field at artistic exhibitions or
showcases. (8 CFR 204.5(h)(3)(vii)). In evaluating evidence submitted to
meet this criterion, the mere fact that the alien has had his or her work
exhibited does not necessarily establish the alien's extraordinary ability
within the field. The petitioner must demonstrate the exhibition or showcase
is itself of distinction and that the alien beneficiary’s exhibited work
at such an exhibition or showcase was itself of such significance as to be
probative of the fact that the alien has sustained national or international
acclaim in his or her field of expertise. On the other hand, where the
evidence submitted shows merely that an artist or performer had a "bit part"
role in a significant artistic performance or that the alien's overall
contribution to an exhibit displayed at a distinguished venue was very minor
, such evidence may not be very persuasive in terms of establishing that
this criterion has been met.
8. Performance in a critical or leading role for organizations or
establishments having a distinguished reputation. (8 CFR 204.5(h)(3)(viii)).
Pursuant to 8 CFR 204.5(h)(3)(viii), evidence must show that the alien has
performed in a "leading or critical role" within a distinguished
organization or establishment. The evidence must establish that the alien
has played more than just a supporting role and that the organization or
establishment has a distinguished reputation or has hosted other
distinguished productions in the recent past. In evaluating such evidence,
you must examine the position that the alien was hired or appointed to fill
on behalf of the organization or establishment and determine whether the
alien's position therein is (or was), a “leading” or “critical” one. You
must also determine whether the organization or establishment itself is in
fact distinguished.
Note: In evaluating the alien's position, the key question is whether the
alien's role was leading or critical to the entire organization, as opposed
to a mere department within the organization.
Note also: Documentation about the organization or establishment that does
not specifically refer to the beneficiary and his or her contributions is
not persuasive evidence of the significance of the role played by the
beneficiary on behalf of the organization; it merely goes to the reputation
of the organization or establishment itself.
9. High salary or remuneration (8 CFR 204.5(h)(3)(ix)). To satisfy this
criterion, the petitioner must show that the alien beneficiary has commanded
a significantly high salary or remuneration for services, in relation to
others in the field. In this regard, evidence that the alien has commanded a
salary or other remuneration significantly higher than others at the alien'
s workplace would not be sufficient to establish the alien's outstanding
role within his or her field without further, objective additional evidence.
Additionally, the submission of official U.S. Department of Labor
prevailing wage rate information for the alien's field of endeavor, without
other corroborative evidence, generally would not meet this criterion, as it
might not establish whether the salary or other remuneration is "
significantly" higher than that of others in the field. Such prevailing wage
rate information should normally be accompanied by other documentation
satisfactorily explaining why the petitioner believes the alien beneficiary'
s salary or remuneration is significantly higher than that of others in the
alien's specific field.
10. Commercial success in the performing arts (8 CFR 204.5(h)(3)(x)). This
criterion focuses on volume of sales and box office receipts. Therefore, the
mere fact that an alien has recorded and released musical compilations or
performed in theatrical, motion picture or television productions would be
insufficient, in and of itself, to establish eligibility under this
provision.
(F) Comparable evidence (8 CFR 204.5(h)(4). This regulatory provision, as
noted above, provides petitioners the opportunity to submit comparable
evidence to establish the alien beneficiary's eligibility, if the standards
described in 8 CFR 204.5(h)(3) do not readily apply to the alien’s
occupation. When evaluating such "comparable" evidence, consider whether the
criteria are readily applicable to the alien’s occupation and, if not,
whether the evidence provided is really comparable to the objective criteria
listed in the regulations. General assertions that the ten objective
criteria described in 8 CFR 204.5(h)(3) do not readily apply to the alien’s
occupation are not probative and should be discounted. Similarly, claims
that USCIS should accept witness letters as comparable evidence are not
persuasive. The petitioner should explain clearly why it has not submitted
evidence that would satisfy at least three of the criteria set forth in 8
CFR 204.5(h)(3) as well as why the evidence it has submitted is “comparable
” to that required under 8 CFR 204.5(h)(3). On the other hand, the
following are examples of where 8 CFR 204.5(h)(4) might apply.
1) An alien beneficiary who is an Olympic coach whose athlete wins an
Olympic medal while under the principal tutelage of the alien might provide
support to a petitioner’s argument that the success of this athlete is
evidence comparable to that in 8 CFR 204.5(h)(3)(i), since that section
might not readily apply to certain types of athletic coaches, if coaches in
their field do not typically receive nationally recognized coaching awards.
2) A bestselling author might be able to demonstrate evidence comparable to
the specific evidence required for commercial success in 8 CFR 204.5(h)(3)(x
) even though he or she is not a performing artist.
3) Election to a national all-star team might serve as comparable evidence
for evidence of memberships in 8 CFR 204.5(h)(3)(ii).
Note: There is no comparable evidence for the one-time achievement of a
major, international recognized award.
Note also: As discussed above, in certain cases, one type of evidence may be
sufficient to satisfy more than one of the criteria set forth in 8 CFR 204.
5(h)(3). Similarly, in some cases, one type of “comparable” evidence
submitted in connection with 8 CFR 204.5(h)(4) might satisfy more than one
of the criteria set forth in 8 CFR 204.5(h)(3).
(G) Evaluating E11 petitions filed on behalf of O-1 nonimmigrants: In some
cases an E11 petition may be filed on behalf of an alien who was previously
granted the O-1, alien of extraordinary ability nonimmigrant classification.
Though the prior approval of an O-1 petition on behalf of the alien may be
a relevant consideration in adjudicating the E11 petition, you are not bound
by the fact that the alien was previously accorded the O-1 classification
if the facts do not support approval of the E11 petition; eligibility as an
O-1 nonimmigrant does not automatically establish eligibility under the E11
criteria for extraordinary ability. Each petition is separate and
independent, and must be adjudicated on its own merits, under the
corresponding statutory and regulatory provisions. Moreover, the O-1
nonimmigrant classification includes different standards and criteria for
aliens in the arts, athletics, and the motion picture industry. In such
cases, there would be nothing inconsistent about finding that an alien in
the arts has “distinction” according to the nonimmigrant criteria, but not
“national or international acclaim” according to the immigrant criteria.
You should be aware that, some courts, notwithstanding the fact that each
petition must be adjudicated on its own merits, have asked USCIS to provide
an explanation as to why, if the alien had previously been classified in a
roughly analogous nonimmigrant category, USCIS has determined that the alien
is not eligible for classification in the employment-based immigrant visa
classification in question. For this reason, where possible, it would be
appropriate to provide a brief discussion, geared to the specific material
facts of the underlying I-140 petition, as to why, notwithstanding the
previous nonimmigrant visa petition approvals, the petitioner has failed to
meet its burden to establish eligibility for approval of the I-140 petition. | s****1
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