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AILA公布刘宗坤联合律师事务所EB-1A上诉案
作者:刘宗坤律师     发文时间: 2010年07月22日 05:00:10
AILA公布刘宗坤联合律师事务所EB-1A上诉案

On July 21, 2010, American Immigration Lawyers Association (AILA) published
on its InfoNet an EB-1A appeal filed by Liu & Associates, PLLC (http://aila.org/RecentPosting/RecentPostingList.aspx). Readers who do not have access to the AILA InfoNet can find the appeal decision at http://niwus.com/files/EB-1A_AAO_20100104.pdf.

In this case, the Administrative Appeals Office (AAO) sustained our appeal
and approved the Eb-1A I-140 petition that was erroneously 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.

To read the AAO decision on the AILA InfoNet, please visit http://aila.org/RecentPosting/RecentPostingList.aspx.

To read the AAO decision on our website, please visit http://niwus.com/files/EB-1A_AAO_20100104.pdf.

To see our recently approved Eb-1A cases, please visit http://niwus.com/Approvals.html.
********************************************************************
刘宗坤律师(Z. Zac Liu, Esq.),法学博士(J.D., Valparaiso University School
of 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。有兴趣提出申请的读者,可将简历发往evaluation@niwus.com。刘律师会
在两个工作日内对符合条件的申请做出免费评估。

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,联邦法院执照,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)、文学
学士(B.A., Northwestern University),德克萨斯州最高法院执照,联邦法院执照,
曾任Department of Justice驻Houston移民法庭Attorney Advisor,现任刘宗坤联合律
师事务所专业移民律师。

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
Wells Fargo Tower, 8th Floor
6161 Savoy Drive, Suite 830
Houston, Texas 77036
Tel: (800) 878-1807
(713) 974-3893
Fax: (866) 608-2766
Email: zliu@niwus.com
Website: www.niwus.com

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