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The Immigration Lawyers Podcast

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Now displaying: May, 2016
May 15, 2016

Analysis of EB-1 Extraordinary Talent Visa, 2nd Prong of Kazarian Decision

 

Show Notes​
02:08 - The example of my initial mistake in filing an EB-1 case for former coach and current athlete
03:00 - My recent EB-1 consultation with a client that was a former player and current coach
04:07 Basic Regulations for the EB-1a, E11 or EB-1c Extraordinary Talent Immigrant Visa Category
05:45 - Most recent AAO decisions about this issue
10:28 - Analysis and Tips for Filing Such EB-1 Cases
11:25 - 1) Creating an Exact Job Title for the Field of Acclaim and Talent
13:52 - 2) Showing Sustained Acclaim in the Field of Extraordinary Talent
14:48 - 3) Continuing in the field of expertise upon entering the U.S.
16:48 - Conclusion

 

Introduction

One of the most frustrating problems in any immigration practice is turning down good clients. For the business-immigration side of my practice, this occurs regularly in EB-1 Extraordinary Talent cases when the client presents some good evidence of national and international awards and acclaim in their field but falls short of the stringent requirements for this visa. For me this mostly happens for athletes, but also for those in the entertainment field and other areas.

This typically is the case for older clients, where they present great documents showing success and awards…but those document being from 10 years earlier. Some of them have transitioned from playing the sport as an athlete to becoming a coach/trainer or sports broadcaster, or sometimes a musician has changed from a performing artist to producer or teacher. The transition could mean that although they were once able to obtain Lawful Permanent Residency in the U.S. through the EB-1 program, their current facts may give them difficulties.

The first time I ran into this problem was when I first started practicing immigration law and I wasn’t aware of the issues presented when a client had not sustained their ability in a particular field after having moved on or evolving into other areas of that field. In this instance, I submitted the case for a former award winning martial art athlete that was now a full-time trainer. On the Form I-140, I simply stated that the job title was “Martial Artist” but provided evidence of both athletic success and coaching success. The USCIS sent me back a very polite Request for Evidence (or RFE) saying that I needed to choose: either the Beneficiary was an athlete or a coach. He could not be both for these purposes. Luckily in that case my client had established himself as a stronger coach than he ever was as a player and I dodged a bullet in this nuanced area of Employment-Based Immigrant Visas.

I most recently dealt with this issue during a case consultation I had was with a former athlete that won his last international award in 2007, but had not had noteworthy success as an athlete from that time until his retirement in 2012. After retiring from playing, he made the transition to coaching. He was in the process of working his way up to the top of that field, recently becoming the national coach for his team. But he wasn’t happy when I told him that I didn’t think he could use his history as a player, and that his current coaching was probably not enough yet to show sustained success to the level needed to be a strong EB-1 candidate.

Today I am going to analyze some case history to help practitioners through this murky area. This issue must be coming up a lot since I see it so many times in AAO decisions and when other immigration attorneys come to me for consultations and guidance about their cases. This information will also help your judgment of which cases to take on based on case history.

I will begin by doing a general overview of the pertinent regulation, going over two recent AAO decisions touching upon this issue and then providing guidance and tips on the three important areas of the 2nd part of the two part analysis of an EB-1 case.

The Regulation

The basic regulations for what I call EB-1a (also known as the E11 category or EB1-3) can be found under INA Section 203(b)(1)(A) and 8 CFR 204.5(h). Further guidance was given in the famous (or infamous) EB-1a case of Kazarian v. USCIS,[1] creating a two-part analysis for an adjudicator of an EB-1a petition[2]:

The First part of the analysis is to show that the alien has extraordinary ability in the sciences, arts, education, business, or athletics through extensive documentation. Showing evidence of one great award like an Olympic medal does this, or satisfying 3 of the 10 criteria listed in the regulation.

In Part Two of the analysis, you must consider all of the evidence to make a final merit determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has:

(i) 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”, and

(ii) They have sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

Also it must be shown that the Beneficiary (or Petitioner, if self-petitioning) is seeking to enter the U.S. to continue work in the area of extraordinary ability, and that the alien’s entry in the U.S. will substantially benefit prospectively the U.S.

My analysis today will be focused of this second prong of the Kazarian analysis.

Case law 

I want to first get into the recent AAO decision in Matter of K-S-Y-.[3] This case discussed how an individual could demonstrate EB-1eligibility during a career transition from competing as an athlete to coaching the next generation of athletes. In this case the Beneficiary had once had great success as a Judo athlete and competitor but was now a coach. The case was still approved despite the transition.[4]

In the final merits determination, the totality of the evidence was considered. The AAO said that the Beneficiary has demonstrated a long, successful, and recent career as a professional judo athlete at the highest level of national and international competition. But defining the cognizable area of extraordinary ability or expertise was complicated when the Beneficiary is transitioning to another phase of his or her career. Though the Beneficiary demonstrated extraordinary ability as a judo athlete in this case, the Petitioner listed on the Form I-140, that his proposed employment in the United States was as judo coach. In a personal statement, it was indicated that he planed to open a judo academy, train promising young players, and eventually coach an American judo team in the Olympics.[5]

The question presented in this case was whether - and if so, how - a petitioner's area of extraordinary ability or expertise may properly encompass both athletic competition as well as coaching other athletes.

In its decision, the AAO cited the USCIS Adjudicator's Field Manual (AFM), saying it provided an analytical footpath by which a petitioner may transition from athlete to coach and yet remain within his or her area of expertise as such: 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 it can conclude that coaching is within the beneficiary's area of expertise.[6]

Also, note that 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 of the case, adjudicators may place heavier, or exclusive, weight on the evidence of the beneficiary’s acclaim as a coach or a manager.

The success of this case was because the athlete (here a Judo expert) obviously had a great career as an athlete, but the AAO though that the Beneficiary’s athletic acclaim was recent enough. Less than a year before submitting this Petition, the Beneficiary had placed second in national competitions and was a member of his country’s national team. He filed the petition in this case within seven months of his last major competitive achievement. So the closeness of filing and last competition was a key factor in its approval.

To support his top-coaching claim, the petitioner provided evidence that he trained judo athletes preparing for the 2014 Asian Games and Commonwealth Games, the 2016 Olympic games, and other international competitions soon after retiring as a player. These considerations supported a finding that the beneficiary’s extraordinary ability and sustained acclaim as a judo athlete extended to his work as a judo coach.

The beneficiary also had educational degrees in coaching, licensing for coaching, wrote about his field, and coached a university team. These preparatory steps taken by the Beneficiary throughout his career as an athlete further supported a finding that coaching was within his area of expertise. Importantly, the case does not make clear how long the time between fields can be. In this case the official coaching position was short-term, but the Beneficiary was able to provide documentations supporting his build up to a top coaching position.

Importantly, note that the AAO said: “We do not purport to establish a particular timeframe within which the transition from competing to coaching is deemed sufficiently recent.” 

Alternatively, in the recent EB-1 case of Matter of H-W-, a Table Tennis Coach’s appeal was dismissed.[7] Here, the petitioner had left the proposed “area of employment box” on Form I-140 as blank, but within the brief had listed his area of expertise simply as “table tennis.” The RFE by the Director said that coaching and competing were not the same thing.[8] The Director’s denial said that the Beneficiary’s coaching history was weak, but the Beneficiary did show a one-time major achievement award as an athlete, satisfying the first prong of an EB-1 adjudication. But the Petitioner's most recent accomplishment as an athlete predated the filing of the petition by approximately 10 years. Thus the evidence did not confirm that the Petitioner sustained his acclaim as an athlete through the date of filing.

Analysis & Tips:

Case law and regulations have established that competitive athletics and coaches rely on different sets of skills and in general are not in the same area of expertise. The AAO has recognized the existence of a nexus between competing and coaching or training. But that it would be too speculative to assume that every extraordinary athlete's area of expertise includes coaching. To resolve this issue, the following vague balance is sometimes appropriate. In a case where an alien has clearly achieved recent national or international acclaim as a competitor and has sustained that acclaim as a trainer at a national level, they can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that it can conclude that training is within the petitioner's area of expertise.

Here are some tips to keep in mind when planning an EB-1 case with a client that has transitioned to a new specialty within their field:

1) Creating an Exact Job Title for Their Current Field of Expertise:

The first thing to do in these cases is to control the narrative of the job title within their field of sustained achievement (and what that job will be after entering the U.S.) by choosing the right position title on Form I-140 and in the cover letter. According to the case of Lee v. INS.,[9] viewing competitive athletics and coaching or training as separate areas of expertise has been upheld in Federal Court.  For example, in the principal case of Lee v. Ziglar[10], the court held that a very successful Korean baseball player could not get an approved EB-1 since his success was not through coaching. The Beneficiary in that case was a lower level baseball coach for a major professional U.S. team at the time of filing the Petition, but was still denied despite massive success as an athlete in his home country. So it is key that practitioners pick a job title within the field of expertise that the person is best known for and is still doing.

But note that the USCIS Director had been called out for using semantics about the language used when defining a job position, as in the approved 2005 AAO decision, where the Petitioner listed his position as a Squash “professional”.[11] The Director said the facts showed success as a player and as a coach, but not as a “Professional.” The AAO found that making a distinction based on this terminology was inappropriate and the case was approved. However (in my opinion), the Beneficiary’s coaching experience was weak: The Beneficiary had coached students that won national and international tournaments. But these were junior teams and he was not the head coach. Other students he coached competed in under 17 championships, or national women’s over 30 competitions, not professionals at their prime. But there was some other work history and experience that helped push this case towards an approval.

Another dispute about the job title and how specific it should be was in GRIMSON v. I.N.S.[12] The Director had rejected a hockey player that received acclaim for playing the specific hockey position of an “enforcer.” The case made its way to the District Court, which found that the Director simply rejected the notion that a hockey enforcer can have extraordinary ability.  The court found that the Petitioner had presented evidence sufficient to demonstrate that he is currently among the top players in the world at what he does and had reached the very top of his field of endeavor. The court concluded that the decision to reject plaintiff's role and unquestioned ability as an enforcer was without rational explanation.

2) Showing Sustained Ability in the Field of Acclaim

If the proper and narrow job title is chosen for someone that has transitioned his or her job, it is important to show sustained acclaim in that new area:

As discussed earlier, in Matter of H-W-, the coach had won a worthy one-time award as an athlete, but that award was won 10 years before the filing that petition. The decision said that even if it was found that the Petitioner established eligibility as an athlete, because the Petitioner intends to work in the US as a coach or trainer, he must demonstrate that his area of expertise includes coaching. In 2012, the AAO released a denial of a Karate Practitioner and Coach[13] where it found that the Petitioner’s most significant accomplishments predated the filing of his petition by 15 or more years.[14] 

As discussed in the most recent AAO decision of the Judo player, a particular timeframe within which the transition from competing to coaching being deemed sufficiently recent to allow evidence of previous athletic acclaim has not been established. But in that case they approved a mixed athlete/coach petition that was filed only 7 months after the Beneficiary’s last competition as an athlete.

3) Continuing Work in the US in the Field of Extraordinary Talent

In Russell v. INS[15] a petitioner met the "extraordinary ability" standard as a hockey athlete but was now retired. He had not indicated any plans to continue working in the area of professional hockey in the United States. The case was denied since the Petitioner was no longer playing in his field.
                                                                                        
In another important EB-1a case, the Director on its own narrowed the possible field of future work related to the alien’s approved area of extraordinary talent. The Federal District Court decision of Buletini v. INS[16], overruled the “AAU,” in its decision to deny a distinguished doctor, concluded that [e]ven if the petitioner (here a doctor) could be said to have risen to the very top of his field based on these accomplishments, the petitioner has not explained how these accomplishments are related to the future practice of medicine at a clinic in Detroit. It was found that it couldn’t be concluded that the petitioner has provided clear evidence that he has the prospect of continuing work in the United States related to the particular area in which he claims to have extraordinary ability. However, the District Court found that the AAU's concern that plaintiff will not continue work in the sciences is irrational in light of the clear evidence that plaintiff intends to continue working in the medical profession. The AAU acknowledged that the petitioner intended and expected to "practice medicine at a clinic in Detroit." But the court held that the regulation does not require the alien to continue work on the specific topic or topics of research for which the alien has previously gained notoriety. The court found that the AAU abused its discretion by limiting the characterization of plaintiff's field to the narrow topics on which plaintiff has previously done research.

Conclusion

These were some key tips a practitioner should note when thinking about a filing a petition that has these types of issues. Unfortunately parts of the EB-1 regulation in this area are still vague. However, each case is different, as is the USCIS officer reviewing that case. As such, cases that have discrepancy or weaknesses in some areas, can overcome that through the totality of the case. If you are dealing with EB-1 cases that have these types of issues or are decided differently, please email me and let me know. My email is info@jqklaw.com

_______________________________________________________________________________________________________________________
[1] 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774)

[2] SIDE NOTE: Svetlana VISINSCAIA, Plaintiff, v. Rand BEERS, et al., Defendants. Civil Action No. 13–223 (JEB) United States District Court, District of Columbia. December 16, 2013 – Note that the USCIS argued that it is only bound by Kazarian in the 9th circuit in a 2013 case. That court did not decide on that issue.

[3] Matter of K-S-Y-, ID# 14269 (AAO Mar. 9, 2016) https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2016/MAR092016_01B2203.pdf

[4] SIDE NOTE: On appeal, the Petitioner states that a position on the national judo team is effectively the most difficult association membership for a judo athlete to obtain, particularly in Korea, which has the third-most Olympic medals in judo of any nation. The Petitioner was a member of the Korean national judo team in 2000, 2004, 2005, 2006, 2007, 2008, 2011, and 2012. Letters from Olympic medalists and refer to training with the Petitioner at the national training center. In addition, the record shows that the Petitioner placed first, second, or third in selection matches that determine who would be on the national team. Only those with the highest level of performance made the team, and that selection was performed by judo judges at the national level.

[5] SIDE NOTE While 8 C.F.R. § 204.5(h)(3)(ii) expressly references a plurality of "associations in the field which require outstanding achievements of their members," we construe this criterion broadly as inclusive of a singular "association." A narrower interpretation could preclude individuals, who in fact clearly have extraordinary ability in their field, from establishing eligibility if their field is one in which only a single such association, no matter how distinguished, exists. See, e.g., Buletini v. INS, 860 F. Supp. 1222, 1230-31 (E.D. Mich. 1994) (single award satisfies "prizes or awards" criterion at 8 C.F.R. § 204.5(h)(3)(i)).

[6] AFM Ch. 22.2(i)(1)(C).

[7]https://www.uscis.gov/sites/default/files/err/B2%20%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2016/JAN282016_02B2203.pdf

[8] SIDE NOTE: about substituting student award: Chapter 22.2(i)(l )(A) of the APM provides that a foreign national "who is an Olympic coach whose athlete wins an Olympic medal while under [his] principal tutelage would likely constitute evidence comparable to that in 8 CPR 204.5(h)(3)(v)," the criterion requiring original contribution of major significance.

[9] 237 F. Supp. 2d 914 (N.D. Ill. 2002)

[10] Lee v. Ziglar, 237 F. Supp. 2d 914 - Dist. Court, ND Illinois 2002

[11]https://www.uscis.gov/sites/default/files/err/B2%20%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2005/JUN102005_09B2203.pdf

[12] N.D.Ill. 1996) 934 F.Supp. 965 (N.D. Ill. 1996)

[13]https://www.uscis.gov/sites/default/files/err/B2%20%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2012/Apr232012_03B2203.pdf

[14] Moreover, in the documentation in support of coaching was unclear from the evidence if the petitioner single-handedly trained his athletes or instead trained them in a collaborative manner with other coaches and the significance or prestige of the awards or prizes presented to the athletes the Petitioner had trained.

[15] 1999 WL 675255 (Dist. Ct. N.D. Illinois, Eastern Division, Aug. 24, 1999)

[16] 860 F. Supp. 1222 - Dist. Court, ED Michigan 1994

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