ANALYSIS OF RECENT EB-1 EXTRAORDINARY ABILITY CASES

[Thanks go to Steve Yale-Loehr and his team at the Ithaca, New York law firm of True, Walsh & Miller for this article. Steve is a co-author of the J Visa Guidebook with Greg Siskind and William Stock and he can be reached at syl@twmlaw.com .]

Many of these cases were denied because the petitioner failed to prove that he/she enjoyed sustained national or international acclaim in his/her field. Also, the AAO often noted a lack of evidence indicating the significance of the achievements cited in the record.

VSC -- EAC 98 135 50572 3/9/99

Postdoctoral research associate specializing in vascular surgery and carotid artery disease, denied

Interesting Points

Petitioner lacks documentation of awards won and lacks evidence proving the significance of these awards. AAO notes that "the assertions of counsel do not constitute evidence."
AAO notes that simply publishing scholarly articles in scientific journals does not serve "as prima facie evidence of national or international acclaim for each co-author…of each of those articles." Evidence should demonstrate that the petitioner has consistently published work in prestigious, major journals. Notes the AAO, "the petitioner cannot simply document his publication record; he must show that this publication record exceeds (not merely in quantity, but in impact) that of almost every other researcher in the field."
AAO declares that the "testimony of long-time associates cannot suffice to establish" that the petitioner is internationally known in his field.
AAO concludes that the witnesses who testify that the petitioner is at the top of his field are, themselves, demonstrably more accomplished and recognized than the petitioner. Thus, "it cannot credibly be argued that the petitioner is among the most accomplished experts in his field, nationally or internationally."
entry will benefit the national economy.
VSC -- EAC 98 031 52171 2/3/99

Collegiate Wrestler, denied

Interesting Points

Gold medals won at state competitions do not qualify as national or international in scope even if they feature competition against former Olympic athletes. Olympic athletes at these events do not imply that the events are of similar caliber as a major national or international event.
Petitioner submits copies of local newspaper articles that briefly mention the petitioner. The AAO notes that the petitioner should present evidence where he has been the main focus of substantial media coverage at the national level.
Petitioner does not satisfy condition of athletic contributions of major significance in the field with testimony that express expectations of future accomplishments.
Upon denial of the original petition, the director observes that the petitioner "presently holds no national championships." However, subsequent to filing the petition, the petitioner won the Division III Championship. The AAO, citing a previous case, determines that "this information is of limited value as the petitioner did not hold this title at the time he filed the petition."
The AAO emphasizes that the petitioner does not demonstrate sustained national or international acclaim in his field. While he may have earned national acclaim in his native Romania, his three-year absence from national competition at the time the petition was filed does not establish that the petitioner has distinguished himself as a wrestler at the top of his field.
VSC -- EAC 98 034 52719 2/4/99

Actor, denied

Interesting Points

Petitioner lacks both first-hand documentation of awards won and their national or international significance.
AAO seeks articles about the petitioner from major publications. "Submitting a large volume of newspaper articles cannot substitute for evidence that the publications are in fact major publications."
AAO criticizes counsel’s argument claiming that because petitioner has appeared in films produced in several different countries, the petitioner has established an international reputation. AAO states that "an actor must do more than simply cross national boundaries to be considered among the most highly acclaimed in his field."
Petitioner’s acclaim is limited to the Armenian community in the United States. In order to qualify as an alien of exceptional ability, the petitioner must establish that he is among the very top actors in the entire United States. The AAO notes that given the length of time that the petitioner has been residing in the United States (since Dec. 1994), it is wholly appropriate for the Service to consider the level of acclaim that the petitioner has achieved in this country.
The petitioner lacks evidence that indicates how his entry would substantially benefit prospectively the United States. The evidence submitted has only indicated benefits directed at the small minority of U.S. residents who speak Armenian.
VSC -- EAC 98 083 52925 3/9/99

Chemical Engineer involved with processing of petroleum products in Poland, denied

Interesting Points

The qualification of membership in associations in the field of expertise cannot be satisfied by evidence of membership in a professional association where employment or expertise in the field is sufficient for membership.
While the petitioner claims that his seven patents should be treated as contributions of major significance in the field, the AAO notes that the petitioner lacks evidence that demonstrates how these constitute a contribution of major significance to the field of chemical engineering.
CSC -- WAC 97 241 51627 2/3/99

Costume Designer who now works exclusively for Bob Dylan creating stage costumes for concert performances, denied

Interesting Points

Petitioner’s evidence of frequent media coverage relies almost entirely on concert reviews and other publications concerning her employer "with minimal comparative evidence regarding other costume designers." While Bob Dylan may be a leading figure in rock music, it does not mean "that members of [his] entourage command similar acclaim or recognition."
In order for movies for which the petitioner designed costumes to qualify as "artistic exhibitions or showcases," the petitioner must provide evidence that these films were intended largely as showcases of costume design. Barring this evidence, the petitioner does not satisfy this criterion.
Petitioner lacks crucial evidence comparing the contribution that her designs have made towards Bob Dylan’s commercial success. AAO notes that petitioner must provide some type of comparative evidence that indicates that her designs of Bob Dylan paraphernalia sells more than items designed by others.
AAO notes that letters of support come only from those who petitioner has worked with. "Their statements do not establish that the petitioner’s reputation extends beyond those who have worked directly with her."
AAO concludes that because the petitioner states that she no longer works in motion pictures, letters of support hailing her career as a motion picture costume designer carry significantly diminished weight.
VSC -- EAC 98 076 52991 3/18/99

Pharmacokineticist, summarily dismissed

Interesting Points

The petitioner filed a Form I-290B Notice of Appeal as the totality of the appeal. The general statement contained in the form makes no specific allegations of error on the part of the initial review by the Director. This is not a sufficient basis for a substantive appeal.
 

VSC -- EAC 98 135 50572 3/9/99

Postdoctoral research associate specializing in vascular surgery and carotid artery disease, denied

Interesting Points

Petitioner lacks documentation of awards won and lacks evidence proving the significance of these awards. AAO notes that "the assertions of counsel do not constitute evidence."
AAO notes that simply publishing scholarly articles in scientific journals does not serve "as prima facie evidence of national or international acclaim for each co-author--of each of those articles." Evidence should demonstrate that the petitioner has consistently published work in prestigious, major journals. Notes the AAO, "the petitioner cannot simply document his publication record; he must show that this publication record exceed (not merely in quantity, but in impact) that of almost every other researcher in the field."
AAO declares that the "testimony of long-time associates cannot suffice to establish" that the petitioner is internationally known in his field.
AAO concludes that the witnesses who testify that the petitioner is at the top of his field are, themselves, demonstrably more accomplished and recognized than the petitioner. Thus, "it cannot credibly be argued that the petitioner is among the most accomplished experts in his field, nationally or internationally."
entry will benefit the national economy.

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