Case Study: AAO Sustained an EB1-A Appeal of Petition for an Alien of Extraordinary Ability in Business

by Victoria Chen, Esq., J.D.

Background: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained and the petition will be approved. The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. s 1153(b)(1)(A), as an alien of extraordinary ability in business.

USCIS Decision: The director characterized the beneficiary's field as wine import and distribution and determined the petitioner had not established that the beneficiary enjoys the requisite national or international acclaim.

AAO's Decision: The AAO did not find in favor of the petition on the issue of defining his expertise. The AAO opined that as the statute requires evidence of sustained national or international acclaim, a petitioner cannot narrow the alien's field to such a small group that rising to the top of the group has no meaning. Our review of the record leads us to conclude that the beneficiary's field is marketing. Even if we limited the beneficiary's field to wine marketing, it is not appropriate to limit the beneficiary's field any further to include only those that market a specific type of wine.

1. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

The petitioner asserts that the beneficiary's efforts in contracting with Wal-Mart to sell South African wines constitute a contribution of major significance. The director concluded that the petitioner had not demonstrated that these efforts were recognized as having major significance in the field as a whole. The AAO stated that when considering the beneficiary's career in the aggregate, however, they were persuaded that the beneficiary meets this criterion.

2. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

The beneficiary served as the CEO of the petitioning distributor, one of the largest importers of South African wine into the United States. The AAO opined that the position of CEO is leading or critical for the company. Although the director of USCIS concluded that the petitioner was too new to enjoy a distinguished reputation, the AAO stated that the petitioner, however, has been consistently covered in the media, including a 2003 cover story in a significant California trade journal, for its innovations and success and is one of the largest U.S. importers of South African wines. Thus, we are satisfied that it enjoys a distinguished reputation in South Africa and the United States. Moreover, as noted above, the beneficiary was selected as one of five out of 150 to serve on a WOSA committee, arguably playing a critical role for WOSA. Thus, we are satisfied that the beneficiary meets this criterion.

3. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media.

The director concluded that the beneficiary meets the regulatory requirements for the published materials criterion set forth at 8 C.F.R. s 204.5(h)(3)(iii) but concluded that the lack of materials after 2003 precluded a finding that they were indicative of sustained acclaim. The AAO concurred with the petitioner on appeal that the evidence submitted to meet a given criterion need not, on its own, establish sustained acclaim as of the date of filing so long as it is indicative of or consistent with sustained acclaim and the remaining evidence supports sustained acclaim through the date when the petition was filed.

The AAO concluded that in this case, the petitioner has satisfied three of the regulatory criteria required for classification as an alien of extraordinary ability. 8 C.F.R. s 204.5(h)(3).

Totality Test:

The AAO found that the totality of the evidence establishes an overall pattern of sustained national acclaim and extraordinary ability. The petitioner has also established that he seeks to continue working in the same field in the United States and that his entry into the United States will substantially benefit prospectively the United States. Therefore, the AAO determined that the petitioner has overcome the stated grounds for denial and thereby established eligibility for immigrant classification under section 203(b)(1)(A) of the Act and the appeal is sustained.

from Chen Immigration Law Associates

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