This case proves once again that O visas (visas for individuals with Extraordinary Ability or Achievement) could be tricky and sometimes unpredictable. This O-1B (extraordinary ability visa in arts) was approved and extended two times prior to subsequent denial of another extension.
A popular thoroughbred racehorse trainer has accused the USCIS in a D.C. federal court of engaging in “capricious” and “arbitrary” behavior by denying an assistant trainer an extension of his nonimmigrant worker status after previously granting it without incident.
Mott Thoroughbred Stables Inc. said in its Friday complaint that by surprisingly and abruptly denying an O-1B petition extension to an “indispensable employee” on which the famed stables has relied since he began working there in 2010, the USCIS has caused irreparable harm to Mott Stables’ multimillion-dollar horse-training business.
The complaint asks the court to compel the USCIS to set aside the petition denial and promptly re-adjudicate the petition with deference to the prior approvals. It also asks the court to order the agency to postpone the effective date of its denial of the petition for assistant horse trainer Rodolphe Brisset and grant a temporary visa status pending the outcome of the instant suit.
“The USCIS failed to provide a reasonable explanation for the denial, failed to cite relevant authority for its decision and failed to clearly articulate the reasons for its abrupt departure from past and ongoing practice of approving O-1B petitions for horse trainers,” the complaint says.
The lawsuit says the unsuccessful petition is virtually the same as the ones USCIS previously approved, and that the agency only now has decided that its past approvals were a “material error” on the part of the agency, “in contravention of internal agency guidance on deference to prior approvals.”
Petitioner also asked the court to open up limited discovery to ascertain the agency’s grounds for denying the company’s petition in light of the two previous approvals of the same petition.
Mott Stables is challenging an October 2014 decision by the USCIS Administrative Appeals Office to uphold the denial of an O-1B extension to the trainer.
After two successful approvals, in 2013 the USCIS sent Mott Stables a request for evidence ( RFE)regarding the international acclaim and recognition Brisset has received a horse trainer, according to the complaint.
Among the types of evidence Mott Stables could hand over was “comparable evidence” of Brisset’s distinction as a prominent horse trainer, and in February 2014 the company sent to the USCIS a letter signed by six expert member of the equine community attesting to Brisset’s skills, according to the complaint. Mott Stables also explained the “unique nature” of the thoroughbred racing industry and why the trainer plays “an essential and critical role” in successful training operations, the complaint says.
In March 2014, the USCIS denied the petition, saying Mott Stables hadn’t demonstrated that Brisset had extraordinary ability in the field of endeavor nor that he had sustained national or international acclaim, according to the complaint.
On appeal, Mott Stables argued that a Department of Homeland Security memo says that deference must be given to a prior determination that an individual is eligible for a particular nonimmigrant classification, where extension of that nonimmigrant petition’s validity “involves the same parties and the same underlying facts,” the complaint says.
Mott Stables argued that the USCIS had not explicitly said why it refused the petition and that changed circumstances and new material information — possibly dispositive developments — did not form the basis of the agency’s decision.
When the USCIS’ appellate body AAO upheld the denial, it ruled that the memo's deference order didn’t apply when there was a "material error," which in this case was that since 2010 the agency had incorrectly found that Brisset’s occupation fell within the O-1B classification, according to the complaint.
Mott Stables said in its Friday complaint that this was the first time the USCIS had ever ruled that Brisset’s horse-trainer position did not qualify as a creative activity or endeavor, such that he could have been classified as an alien of extraordinary ability in the arts.
Read at http://law-visa-usa.com/1/post/2015/03/o-1b-denial-case-stable-owners-sued-uscis-for-denial-of-o-1b-extension-to-their-racehorse-trainer-aao-upheld-denial-for-material-error-in-the-previous-approvals.html
- Law360, Mar. 10, 2015.
A popular thoroughbred racehorse trainer has accused the USCIS in a D.C. federal court of engaging in “capricious” and “arbitrary” behavior by denying an assistant trainer an extension of his nonimmigrant worker status after previously granting it without incident.
Mott Thoroughbred Stables Inc. said in its Friday complaint that by surprisingly and abruptly denying an O-1B petition extension to an “indispensable employee” on which the famed stables has relied since he began working there in 2010, the USCIS has caused irreparable harm to Mott Stables’ multimillion-dollar horse-training business.
The complaint asks the court to compel the USCIS to set aside the petition denial and promptly re-adjudicate the petition with deference to the prior approvals. It also asks the court to order the agency to postpone the effective date of its denial of the petition for assistant horse trainer Rodolphe Brisset and grant a temporary visa status pending the outcome of the instant suit.
“The USCIS failed to provide a reasonable explanation for the denial, failed to cite relevant authority for its decision and failed to clearly articulate the reasons for its abrupt departure from past and ongoing practice of approving O-1B petitions for horse trainers,” the complaint says.
The lawsuit says the unsuccessful petition is virtually the same as the ones USCIS previously approved, and that the agency only now has decided that its past approvals were a “material error” on the part of the agency, “in contravention of internal agency guidance on deference to prior approvals.”
Petitioner also asked the court to open up limited discovery to ascertain the agency’s grounds for denying the company’s petition in light of the two previous approvals of the same petition.
Mott Stables is challenging an October 2014 decision by the USCIS Administrative Appeals Office to uphold the denial of an O-1B extension to the trainer.
After two successful approvals, in 2013 the USCIS sent Mott Stables a request for evidence ( RFE)regarding the international acclaim and recognition Brisset has received a horse trainer, according to the complaint.
Among the types of evidence Mott Stables could hand over was “comparable evidence” of Brisset’s distinction as a prominent horse trainer, and in February 2014 the company sent to the USCIS a letter signed by six expert member of the equine community attesting to Brisset’s skills, according to the complaint. Mott Stables also explained the “unique nature” of the thoroughbred racing industry and why the trainer plays “an essential and critical role” in successful training operations, the complaint says.
In March 2014, the USCIS denied the petition, saying Mott Stables hadn’t demonstrated that Brisset had extraordinary ability in the field of endeavor nor that he had sustained national or international acclaim, according to the complaint.
On appeal, Mott Stables argued that a Department of Homeland Security memo says that deference must be given to a prior determination that an individual is eligible for a particular nonimmigrant classification, where extension of that nonimmigrant petition’s validity “involves the same parties and the same underlying facts,” the complaint says.
Mott Stables argued that the USCIS had not explicitly said why it refused the petition and that changed circumstances and new material information — possibly dispositive developments — did not form the basis of the agency’s decision.
When the USCIS’ appellate body AAO upheld the denial, it ruled that the memo's deference order didn’t apply when there was a "material error," which in this case was that since 2010 the agency had incorrectly found that Brisset’s occupation fell within the O-1B classification, according to the complaint.
Mott Stables said in its Friday complaint that this was the first time the USCIS had ever ruled that Brisset’s horse-trainer position did not qualify as a creative activity or endeavor, such that he could have been classified as an alien of extraordinary ability in the arts.
Read at http://law-visa-usa.com/1/post/2015/03/o-1b-denial-case-stable-owners-sued-uscis-for-denial-of-o-1b-extension-to-their-racehorse-trainer-aao-upheld-denial-for-material-error-in-the-previous-approvals.html
- Law360, Mar. 10, 2015.
