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EB-1 denial and AAO

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  • EB-1 denial and AAO

    Hello everyone,
    I am new to this forum. First of all I would like to say hi to everyone and say thank for to the outstanding community and forum's moderators that help so many people with valuable information. After thinking many weeks I have decided to sit down and write to you about my EB-1 case and ask your opinion, have insights and hopefully prognosis on my case.

    Summary (for those who want to skip): I am an award-winning, world renowned pianist & composer, I have applied for E11 or EB1-A (immigration/classification as an individuals with extraordinary ability in arts) in California through my lawyer. My case received an RFE. Then was denied. The motion to reconsider was denied. And then filed for an appeal. Now waiting.

    - How do you feel about my case? Is it strong? am I pretentious? Did I underestimate the EB-1 difficulty ?
    - Why did they ignore 2 extra-criteria without even referring to them? Is it legal to dismiss such evidence and still hold firm to an unfair decision?
    - Can an immigration officier respond so quickly to an initial application with an RFE, deny it, hold firm on denial and dismiss evidence ? Can they influence AAO/AAU ?
    - Do immigration officers have different tempers (some being more indulgent than others?)
    - How does the AAU administrative appeal unit react to such a case? How long will it take?

    Looking to hearing your opinions, insights and pronostics !

    If you want details, please find below:

    November 2013: initial conversation with lawyer about potential EB-1 case
    December 2013: signed contract with him
    January 2014: Start filling in the forms and paperwork with the lawyer
    January-February 2014: gathering all evidence, letters of recommendations, articles, and mounting the case.
    March 2014: My lawyer filed I-140 under the Premium Processing Service.
    March 2014: 6 days later I received an RFE.
    April 2014: we submit the RFE response.
    May 2014: Receive EB-1 denial.
    June 2014: Filed an MTR (Motion to reconsider).
    June 2014 (exactly 90 days after March): received an RFE for EAD saying photos were not clear. Responded to it.
    June 2014: Contacted a congressman to accelerate my MTR. My UPS letter was signed for and received but never heard from him.
    July 2014: EAD (I-131 and I-935) received.
    August 2014: MTR denied.
    August 2014: Appeal filed.
    October 2014: Online tracking says "we transferred your I485, Application to register permanent residence or to adjust status, to your local USCIS Office for further processing. The new office has jurisdiction over your case and will send you a decision as soon as processing is complete or you will be notified if further information or action is needed. "
    Same thing for “I140 immigrant petition for alien worker”.

    Lawyer said that my case was forwarded the the Administrative Appeals Unit per the notices they received in the mail. The AAU is an independent appeals unit that reviews decisions made by the service centres if they hold firm on their position.

    Case details:
    - RFE argument: acknowledging one met criteria. more evidence asked about sustained acclaim, performance venues, awards etc.
    - RFE response submitted: submitted a response to the request for evidence, arguing that the evidence previously submitted and new evidence being submitted unequivocally meets 5 regulatory criteria, based on a preponderance of the evidence that the beneficiary meets the regulatory criteria and is eligible for immigrant classification as a person with extraordinary ability in the arts.

    - I submitted evidence of international media coverage of my work, international sustained acclaim, testimony letters from the U.S. Department of State, an international prestigious music academy and several famous international pianists, performance proofs as the unique pianist in several major international venues including in an internationally famous one in NY, all attesting that I have risen to the very top of the field detailing why and how I made major contributions in the field. I meet 5/10 criteria. USCIS recognised 3, and ignored/dismissed/didn’t comment nor mention the 2 extra.

    - Denial argument: USCIS acknowledged that the beneficiary has met the minimal 3 regulatory criteria (ignoring and not commenting on the 2 left others). In the final merits determination, the USCIS does not find the beneficiary to be an individual of extraordinary ability because:
    1- While USCIS agrees that the beneficiary has received and qualifies for a nationally recognised prize or award, it is not indicative of an alien of extraordinary ability as such an individual who can show the receipt of multiple prizes or awards.
    2- While USCIS agrees that the beneficiary has performed in a leading venue such as “X”, it is not indicative of an alien of extraordinary ability as such an individual would be able to show they have performed in more than one venue. This is wrong, since my attorney's submitted evidence clearly demonstrating multiple performances in distinguishable venues in many countries, and not only X in NY, but also the famous Y in London and Z in Washington DC, and other major European capitals.
    3- Finally, the USCIS says that the beneficiary "is merely starting out his career as a pianist in the field of performing arts" and therefore is not extraordinary.

    - Motion to Reconsider argument: filed a motion to reconsider the case because:
    1- USCIS recognised that the beneficiary meets 3 of the criteria to be eligible for EB-1A classification, it has ignored that the beneficiary meets 2 other criteria.
    2- Having ignored a complete record and proof made of 7 testimonial letter from experts attesting that the beneficiary performed at numerous venues and countries.
    3- Under the preponderance of the evidence standard of review, the USCIS must review the entire record, not just parts of it.

    - MTR denial argument: none. Just saying “your motion to reconsider” has been rejected.

  • #2

    so how did your case turned out at the end? Did you re-apply?