Strategizing Eb-1a Extraordinary Ability Petitions Drawing from Favorable Aao Decisions

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 2
• Publication year: 2021
• topic: Administrative Law,Intellectual Property,Immigration Law,Employment Law

Strategizing EB-1A Extraordinary Ability Petitions Drawing From Favorable AAO Decisions

Sasha Kaskel ^*

Abstract: The Immigration and Nationality Act provides for the issuance of immigrant visas to foreign nationals with extraordinary ability in the fields of science, business, art, education, or athletics. Extraordinary ability is proven by demonstrating three out of a possible ten criteria listed in the Code of Federal Regulations. The USCIS Administrative Appeals Office (AAO) has issued probative decisions sustaining appeals and approving petitions to classify beneficiaries as aliens with extraordinary ability. This paper highlights favorable AAO decisions made on EB-1A petitions and the reasoning elaborated for reaching their conclusions. While nonprecedent AAO decisions are nonbinding, the reasoning supporting favorable holdings may shed powerful light on strategic approaches to satisfying the extraordinary-ability criteria.

EB-1A Extraordinary-Ability Criteria

Under the Immigration and Nationality Act, a petitioner may petition for a beneficiary to be classified as an alien with extraordinary ability by filing Form I-140, Petition for Immigrant Worker. ¹ "Extraordinary ability" means a level of expertise indicating that the individual is "one of that small percentage who have risen to the very top of the field of endeavor." ² Qualifying for this classification requires showing that the foreign national (1) holds extraordinary ability, (2) will continue working in the field of expertise, and (3) will substantially benefit the United States. Extraordinary ability is proven by demonstrating either "a one-time achievement (that is, a major, international recognized award);" ³ or at least three of the following criteria:

■ The foreign national has received nationally or internationally recognized prizes or awards for excellence in the field of expertise. ⁴
■ The foreign national has held membership in associations within the field of expertise that require outstanding achievements of their members, as judged by recognized national or international experts in the field. ⁵
■ Materials about the foreign national's work in the field of expertise have been published by "professional or major trade publications or other major media." ⁶

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■ The foreign national has participated as a judge of others' work in the field of expertise or an allied field. ⁷
■ The foreign national has made "original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field." ⁸
■ The foreign national has authored scholarly articles in the field, "in professional or other major media trade publications or other major media." ⁹
■ The foreign national's work in the field has been displayed "at artistic exhibitions or showcases." ¹⁰
■ The foreign national "has performed in a leading or critical role for organizations or establishments that have a distinguished reputation." ¹¹
■ The foreign national "has commanded a high salary or other significantly high remuneration for services, in relation to others in the field." ¹²
■ The foreign national has earned "commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales." ¹³

The Doctrine of Comparable Evidence

Providing a final opportunity to demonstrate qualification, documentation may be submitted as "comparable evidence to establish the beneficiary's eligibility" for classification as an alien with extraordinary ability. ¹⁴ A 2010 United States Citizenship and Immigration Services (USCIS) policy memorandum explains: "This regulatory provision provides petitioners the opportunity to submit comparable evidence to establish the alien beneficiary's eligibility, if it is determined that the [regulatory] standards . . . do not readily apply to the alien's occupation. When evaluating such 'comparable evidence,' consider whether the [regulatory criteria] do not readily apply to the alien's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation. General assertions that any of the ten objective criteria . . . do not readily apply . . . should be discounted." ¹⁵ This language may be interpreted as requiring proof that none of the ten criteria apply to the beneficiary's occupation in order for comparable evidence to be considered. However, AAO decisions have concluded that beneficiaries satisfied a criterion through comparable evidence, while simultaneously considering documentation that they met other of the ten criteria. ¹⁶ Drawn from favorable decisions, the AAO's reasoning for accepting comparable evidence in lieu of regulatory criteria is detailed below.

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Considerations for Extraordinary Ability in Athletics

Several criteria demonstrating extraordinary ability are readily applicable to beneficiaries specializing in athletics, whose achievements may include winning medals and publication by the media. Considering athletes' frequent career change to coaching, the job title sought by a beneficiary is a crucial consideration that may fundamentally dictate the strategic approaches to demonstrating satisfaction of the criterion. The three major job title options for a beneficiary who has earned achievements both as an athlete and coach are (1) athlete or competitor, (2) coach, or (3) [name of sport] specialist, expert, or professional. The third option implies a "hybrid" between the first two, consisting of both athletic and coaching duties. ¹⁷ A beneficiary's proposed job title should be carefully considered in light of the possibility that USCIS may interpret past athletic achievements as less relevant, or even inapplicable, to the regulatory criteria where he or she seeks employment as a coach.

Where the beneficiary seeks employment as a coach, some AAO decisions have considered that only coaching achievements were capable of satisfying the regulatory criteria. ¹⁸ However, other decisions accepted that a coach's past athletic achievements satisfied the criteria, and subsequently performed an overall analysis to determine whether the beneficiary's expertise expanded to coaching. ¹⁹ Both approaches taken by the AAO are analyzed below, pinpointing the specific reasoning and case facts that supported favorable decisions.

Considering Whether Coaching Is Within the Beneficiary's Area of Expertise

In Matter of K-S-Y-, the AAO held that the petitioner, who sought employment as a judo coach, "established his extraordinary ability in judo" by meeting three regulatory criteria. ²⁰ The petitioner satisfied the (1) "awards or prizes," (2) "membership," and (3) "published materials" criteria based on his athletic achievements. ²¹ Yet the petitioner was not "off the hook" in proving that coaching fell within his area of expertise. ²² The AAO explained: "We may conclude that coaching is within an athlete's area of expertise . . . if (1) the individual's national or international athletic acclaim was recent; and (2) he or she sustained that acclaim upon transition to coaching at a national level." ²³ Applied to the petitioner, the AAO observed that (1) "the record demonstrates the Petitioner's recent athletic acclaim," and (2) there was "no appreciable lapse between his days of competing as an athlete and coaching at the national level . . . . These considerations support a finding that the Petitioner's extraordinary ability and sustained acclaim as a judo athlete . . . extend to his work as a judo coach." ²⁴ Supporting this favorable decision, the record also showed a "progression of education, experience, and licensing that has

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positioned the Petitioner to continue in his area of expertise as a judo coach . . . . These preparatory steps taken . . . throughout his career as an athlete further support a finding that coaching is within his area of expertise." ²⁵

Prior to K-S-Y-, decisions already utilized an analogous framework to analyze whether the foreign nationals' area of expertise encompassed coaching, where the regulatory criteria were satisfied based on their athletic achievements and they sought employment as a coach. In 2008, an AAO decision sustained the appeal and approved the petition for a figure skating coach where the director had already expressly concluded that the petitioner qualified as a competitive skater of extraordinary ability. Thus, the only issue on appeal was whether the petitioner had demonstrated that coaching fell within his area of expertise. ²⁶ The AAO explained: "While a figure skater and a coach certainly share knowledge of ice-skating, the two rely on very different sets of basic skills. Thus, we will not presume that coaching necessarily falls within the same area of expertise as competitive athletics . . . . In a case where [1] an alien has clearly achieved national or international acclaim as an athlete; and [2] has sustained that acclaim in the field of coaching at a national level, we 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 petitioner's area of expertise. Specifically, in such a case, we will consider the level at which the alien acts as a coach. A coach who has an established successful history of coaching athletes who compete regularly at the national level has a credible claim." ²⁷

As detailed above, Matter of K-S-Y- outlines a framework to demonstrate that a foreign national who seeks employment as a coach, yet satisfies the regulatory criteria based on athletic achievements, will "enter the United States to continue to work in his area of extraordinary ability." ²⁸ However, a presupposition that USCIS will analyze evidence in strict accordance with Matter of K-S-Y-, a nonprecedent decision, need not be considered the sole strategy in preparing an EB-1A extraordinary-ability petition. Other favorable AAO decisions, approving petitions for...