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Is USCIS Unfair to Women Seeking Extraordinary Ability Green Cards? By Roger Algase

Rating: 3 votes, 5.00 average.

This post has been revised as of 6:21 pm, January 20.

One of my clients is a highly accomplished jewelry designer with a remarkable record of achievement in her field. As I have mentioned in a couple of previous posts, an I-140 extraordinary ability (EB-1) petition which she had filed on her own behalf was approved almost two years ago, in February, 2012, by the USCIS Texas Service Center. The approval was based on over 200 pages of evidence which she had submitted initially and in answer to an RFE.

(I was not involved in her case and did not represent her at that time.)

However, in October, 2013, some 20 months after her I-140 approval, while waiting for her green card, she received a Notice of Intent to Revoke her I-140 petition approval (NOIR) from the same Texas Service Center which had originally approved it.

None of the reasons mentioned in previous INS or USCIS decisions which were cited in the NOIR as grounds for revoking an already approved immigration petition were involved in this case. The NOIR did not claim, as is usually the case with revoking petitions, that there was new information which would cast doubt on the correctness of the previous approval.

Nor did the NOIR claim that there had been any misrepresentation or that the TSC officer who had originally approved the petition had made any mistake about the facts relating to my client's career and her accomplishments.

Also, there had not been any change in the law relating to her type of case. There was an important federal circuit court decision which made a significant change in the applicable law in 2010 (Kazarian v. USCIS). But this change in the law took place before her case was filed or decided, and it was not mentioned in the NOIR as a reason for intending to revoke the approval.

Reading through the NOIR, it seemed that the only reason for reopening the case was that the TSC didn't like the fact that it had been approved in the first place.

But there has to be a legal reason for reopening an already approved case and then revoking the approval. At least that is what the three BIA decisions cited in the NOIR itself as support for revoking the approval say.

In order to qualify for an extraordinary ability green card, the person applying must meet at least three out of seven or more (depending on the type of case) criteria for extraordinary ability.

If he or she meets this initial requirement, he or she must then pass a "final merits" determination to decide if he or she has received "sustained national or international acclaim" and is one of the "small percentage" who has reached the "very top" of the field in question.

In my client's case, the final merits determination was not an issue, because the NOIR claimed that she did not meet at least three of the initial requirements

I will not discuss all of the intitial requirements here, but only one. The one I will discuss is important because it raises a serious question about whether women are receiving equal treatment with men in deciding EB-1 extraordinary ability cases at the Texas Service Center.

One of the initial criteria for showing extraordinary ability is winning a "lesser" national or international prize or award in the person's field. (Few people win what the USCIS would accept as a "major" award, because the agency defines this as an award "such as" the Nobel Prize. End of discussion on "major" awards.)

My client had won the first prize in a well known national jewelry design competition from a respected, almost 120 year old US organization, which has in the past honored some of the greatest American women in this country's entire history (in various other fields).

However, the NOIR argued that this first prize did not count because the jewelry design competition was only open to women, not men.

Specifically, the NOIR stated, with respect to this particular competition (as well as, inaccurately, at least two of her finalist awards in other competitions which were in fact open to men as well as women):

"Also, the evidence reflects that the awards were only for women and therefore not open to everyone."

When I saw this, I did some research to see if there were any published decisions in which USCIS or the federal courts had rejected a prize or award as a basis for EB-1 extraordinary ability when the competition was open only to men.

I found a 2010 AAO decision, LIN 07 212 51226. In that decision, also in an EB-1 extraordinary ability petition case, the petitioner claimed to have won an award for "Best Male Vocalist" in his country.

The award was rejected as a qualification for EB-1, but not because the competition, by definition, was limited to men only. This AAO decision says nothing about rejecting the award because women were not eligible to compete!

Instead, the award was rejected on other grounds, i.e. lack of evidence that the competition in question was national in scope, something which was not raised as an issue in the NOIR in the jewelry designer's case.

We are evidently dealing here with a USCIS double standard, in which the AAO does not rule out considering an award in a competition open only to men as a basis for showing EB-1 extraordinary ability. but the TSC rules out a first prize in a national competition open only to women on the grounds that men could not compete! Is this fair to women?

I hope and trust that, in its final decision, the Texas Service Center will recognize women as equal to men and will avoid even the appearance of gender discrimination! With regard to women's rights, America is supposed to be in the 21st Century, not the 19th. This applies to immigration petitions too. The USCIS Texas Service Center is no exception.

______________________________

Roger Algase, an attorney and a graduate of Harvard College and Harvard Law School, has been practicing immigration law in New York City for more than 30 years.

He has helped many capable and hard-working professionals with H-1B, extraordinary ability and Labor Certification cases, among others, to develop strategies leading to successful results. He also represents opposite and same sex married couples in green card applications.

Roger Algase has made it possible for immigrants from many parts of the world to achieve their goals, advance their careers, and build a solid foundation for their lives in America. His email address is algaselex@gmail.com




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Updated 01-25-2014 at 11:01 AM by ImmigrationLawBlogs

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