Mr. Lee Gets USCIS to Make Decision on Merits Where Ex-Attorney's
Late Appeal & Later Motion Were Denied for Untimeliness, It
Was Reported in World Journal on March 29, 2009
World Journal March 29, 2009 Sunday New
York Community (1) Page. C3
An Alien of Extraordinary Ability Applied
for Green Card
One Event Triggered Another
A Chinese Opera Actor’s Employment-Based
Immigrant Visa was Denied
Because His Appeal Filed Untimely
An Attorney Based on Motion to Reopen
Brought Back this Case
Reporter Yuting Zhou, Reporting From New York
Chinese Traditional Opera Actor Mr. Yong (Yong, transliterates),
filed an employment-based immigrant visa under his “Extraordinary
Ability” category for his green card but was denied by USCIS,
because his materials were full of loopholes. Later Mr. Yong filed
an appeal but was done after his 30 days of time limit allowed.
His appeal was denied by Administrative Appeal Office (AAO). His
attorney, not too long ago, filed a motion, arguing the appeal filed
after the time allowed, should be treated as a motion and requested
Judge to make the ruling based on the merits of this case.
The attorney reminds Chinese people who are qualified for the “Extraordinary
Ability” category to have all the documents ready at the time
of filing to avoid affecting the application process.
Mr. Yong's attorney Alan Lee, Esq. said that after Mr. Yong’s
extraordinary ability application was denied, according to the regulation,
his appeal should be filed within 30 days of the denial decision,
but Mr. Yong missed the deadline, so his appeal was rejected. His
then attorney filed a motion to reopen this case again requesting
AAO to treat this appeal as a “motion”, unfortunately
it was denied once again.
According to law, if an appeal is filed untimely, there are two
supplemental condition, one is the application fee could not be
returned, the other is that if it meets the requirement, the application
should be treated as a motion and to adjudicate this case based
on its content and review this case.
After Mr. Alan Lee took over this case, he quoted this law and
once again filed the motion to the administrative Appeal Office.
Recently, AAO issued a 13 pages of decision, detailing the reasons
for the denial, but granted this motion to allow the applicant to
submit additional documents within 30 days and then, USCIS would
base on the documents to re-adjudicate his application.
According to the decision, Mr. Yong is a Chinese Kunqu opera artist
who had certificates of being an outstanding Chinese drama actor,
and had won awards at several competitions in China. After he came
to U.S., he filed for the “extraordinary ability” application
based on his said abilities.
The USCIS indicated that the term “Extraordinary Ability”
means the applicant possesses an outstanding and irreplaceable status
in his professional field internationally, however, Mr. Yong’s
documents provided previously, although with the English language
translation, were not properly certified. The immigration officers
would be unable to distinguish the truthfulness of those certifications
or awards. And from the materials submitted by Mr. Yong, the immigration
officers could not identify if the applicant held extraordinary
position on his field of endeavor.
Mr. Alan Lee said this decision is without precedent to this type
of cases in the Administrative Appeal Office (AAO) and it was a
small victory. However, to allow this application to come to this
stage is not worth it. He said many Chinese people qualify for the
extraordinary ability applications, but the applicants must do all
preparation at the time of filing. In addition, if the applicant
wants to appeal, he/she must file the appeal within 30 days of the
decision, in order to avoid any possibility of the appeal being
returned.
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