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Additional EB2 AAO Decisions posted since prior update of August 23rd 2012
 

Additional EB2 AAO Decisions posted since prior update of August 23rd 2012

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    Additional EB2 AAO Decisions posted since prior update of August 23rd 2012 Additional EB2 AAO Decisions posted since prior update of August 23rd 2012 Document Transcript

    • Additional EB2 AAO Decisions Posted Since Prior Update of August 23rd 2012 Compiled &w/commentary by Joseph P. Whalen (October 1-4, 2012)My previous collection, entitled “EB-2 AAO Decisions Decided in January 2012” wascompiled and posted on August 23, 2012, which covered Decisions dated betweenJanuary 3, 2012, through January 19, 2012 #1. Several other compilations can also befound on the site linked above, including, but not limited to:  http://www.slideshare.net/BigJoe5/review-of-aao-eb3-decisions- of-january-2012  http://www.slideshare.net/BigJoe5/aao-tps-decisions-of-january- 2012-and-daca  http://www.slideshare.net/BigJoe5/aao-decisions-for- intracompany-transferee-cases-in-january-2012  http://www.slideshare.net/BigJoe5/eb2-aao-decisions-posted- since-july-20th-2011and the most popular with over 1,250 views and counting is:AAO Decisions on Form I-131Travel Document Appeals 2010-11  http://www.slideshare.net/BigJoe5/aao-decisions-on-form-i131- travel-document-appeals-201011 LINK & RESULT REMARKS and/or EXCERPTSJan192012_02B5203.pdf The petitioner seeks classification pursuant to section 203 (b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1153(b)(2), as an alien of exceptional ability in theAPPEAL DISMISSED sciences. The petitioner seeks employment as an urban forester at the University of California, San Diego (UCSD). The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner does not quality for classification as an alien of exceptional ability in the sciences or as a member of the professions holding an advanced degree. The director also found that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.Jan192012_03B5203.pdf The record indicates that the service center director issued the decision on April 3, 2009. It is noted that the service center director properly gave notice to the petitioner that it had 33APPEAL REJECTED days to file the appeal. Neither the Immigration andCASE REMANDED for Nationality Act nor the pertinent regulations grant the AAOconsideration as MTRR authority to extend this time limit. Page 1 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSIn other words, check Although counsel dated the Form I-290B May 4, 2009, it wasthese things over BEFORE not received by the service center until June 4, 2009 or 62 days after the decision was issued. Accordingly, the appeal wassending them! untimely filed. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the Nebraska Service Center. See 8 C.F.R. § 103.S(a)(1)(ii). The matter will therefore be returned to the director. If the director determines that the late appeal meets the requirements of a motion, the motion shall be granted and a new decision will be issued. As the appeal was untimely filed, the appeal must be rejected.Jan202012_01B5203.pdf The Director denied the petition on the ground that the petitioner failed to establish its continuing ability to pay the proffered wage to the beneficiary.APPEAL DISMISSED The Director denied the petition on the ground that the laborJan202012_02B5203.pdf certification (ETA Form 9089) does not support theDENIAL WITHDRAWN classification of the job opportunity as degree in a specific field requiring a baccalaureate or advanced a professional positionCASE REMANDED of study.FOR NEW DECISION On appeal, the petitioner pointed out that the Director misidentified the proffered position in his decision as a SeniorMatter of Shin, 11 I&N Dec. Software Engineer, rather than Associate Manager-Recruiting.686 (Dist. Dir. 1966) The petitioner asserted that the DOL, in certifying the ETA Form 9089, determined that the educational requirementsMatter of Palanky, 12 I&N specified in the labor certification were proper, and that theDec. 66 (Regl. Commr. 1966) Director erred in not accepting the DOLs determination. * * * * * At issue in this appeal, therefore, is whether a labor certification requiring an academic degree must also specify a major field of study in order for the job in the visa petition to qualify as a bona fide professional position. Section 101(a)(32) of the Act defines "profession" as follows: Page 2 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS The term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, "Profession" is further defined in the regulation at 8 C.ER. § 204.5(k)(2), as follows: Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. The Director recited these definitions in his decision, but relied on the aforementioned INS decisions in Matter of Shin and Matter of Palanky in ruling against the petitioner. Both of these decisions predate the regulation at 8 C.F.R. § 204.5(k)(2). Therefore, the AAO must defer to the definition in that regulation, which states only that a profession is an occupation that requires at least a baccalaureate degree for entry into the occupation. The regulation does not state that the degree must be in a field specifically related to the occupation. * * * * * Based on the foregoing analysis, the AAO determines that the specific job certified by the DOL is a professional position. Accordingly, the Directors decision of June 18, 2007, denying the petition, will be withdrawn. However, the petition cannot be approved by the AAO based on the present record. Therefore, it will be remanded to the Director for the consideration of issues not previously addressed, and the issuance of a new decision.Jan202012_03B5203.pdf The appeal is dismissed as moot based on the aliens adjustment to lawful permanent resident status.APPEAL DISMISSEDJan232012_01B5203.pdf The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal.APPEAL DISMISSED On November 10, 2011, this office sent the petitioner aATP = Ability To Pay Request for Evidence (RFE) for the petitioner to submit additional evidence and resolve conflicts in the evidence. (There was NO RESPONSE-ATP not overcome). Page 3 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSJan232012_02B5203.pdf The petitioner seeks employment as a freelance management analyst/consultant. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a laborAPPEAL DISMISSED certification, is in the national interest of the United States. The director found that the petitioner failed to show that she Training Issues? qualifies for classification as an alien of exceptional ability or as a member of the professions holding an advanced degree, orThe various errors found in the that an exemption from the requirement of a job offer would bedecision below are just too in the national interest of the United States.many. There must be a needfor remedial training or The first issue under consideration is whether the petitionerperhaps better basic training. qualifies for the classification sought. * * * * * [AAO discussed how the Director misapplied the regulations.] * * * * * The petitioners evidence is consistent with a finding that her occupation is a profession (requiring at least a bachelors degree for entry into the occupation). The director did not contest that the petitioner holds an advanced degree. Therefore, the record establishes that the petitioner is a member of the professions holding an advanced degree. The AAO will withdraw the directors fining to the contrary. The second and final issue in this proceeding is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest. As quoted previously, the USCIS regulation at 8 C.F.R. § 204.5(k)( 4)(ii) states: "To apply for the exemption, the petitioner must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate." The Form ETA-750B is now obsolete; parts J, K and L of the successor Form ETA- 9089 fulfill the same function. The petitioner did not submit any of these required forms, and therefore did not properly apply for the waiver. Nevertheless, the director did not base the denial of the petition on this omission. The AAO will consider the merits of the petitioners claim, rather than leave it at a finding that the petitioner did not properly apply for the national interest waiver. [More errors in the initial proceedings at the Service Center.] On December 8, 2009, the director issued a request for evidence (RFE), instructing the petitioner to submit evidence to establish the national scope and influence of her work. Although the RFE concerned the petitioners Form 1-140 Page 4 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS petition, the RFE listed the receipt number of the Form 1-485 adjustment application that the petitioner had concurrently filed with the petition. On January 6, 2010, the director issued a second RFE, this time referring to the petition rather than the adjustment application. Because the response period for these two RFEs overlapped, and the petitioner submitted many of the same exhibits in response to both notices, the AAO will consider them here collectively. The AAO notes that, in the second RFE, the director repeatedly referred, erroneously, to the petitioners research work. Such references do not apply because the petitioner is not a researcher. This error, however, does not invalidate the RFE as a whole. On appeal, the petitioner, referring to herself in the third person, stated: It should be noted that in the nine years prior to the filing of the Form I-140 Immigrant Petition, the petitioners employment opportunities had been adversely affected and severely limited by her immigration status. Without work authorization, Social Security Number and Driver license, the petitioners mobility had been greatly restricted to a particular geographic area, thus, the regionalized clientele and the attenuate impact and contribution to the industry or field.Jan252012_01B5203.pdf On the immigrant visa petition (Form 1-140), filed on August 12, 2008, the petitioner indicated (at Part 2.d.) that it was filing for "[a] member of the professions holding an advancedAPPEAL DISMISSED degree." As identified on the petition, therefore, the proffered position requires the services of a person with at least aQ. How LOW can you go masters degree or a bachelors degree and five years of(with regard to foreign progressive experience in the specialty. See H C.F.R. §equivalent educational 204.5(k)(2). On the labor certification application (ETA Formrequirements)? 9089) previously filed with the DOL (on February 4, 2008), the petitioner stated that the minimum education required for the subject position is a masters degree in computer science,A. Not that low, and still engineering, or any other related scientific field (Part H, Boxesbe an EB-2 position. 4, 4-B, and 7-A), and that a "foreign educational equivalent" would be acceptable (Box 9). The petitioner also stated that an alternate combination of education and experience would be acceptable - namely, a U.S. bachelor of science degree "or any combination of foreign education equivalent to a U.S. bachelors degree," plus five years of experience (Part H, Boxes H, H-B, and 8-C). (Emphasis added.) Page 5 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSJan262012_01B5203.pdf The Director, Nebraska Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Office (AAO) on appeal.APPEAL DISMISSED On November 18, 2011, this office sent the petitioner with a Request for Evidence (RFE) and afforded the petitioner an opportunity to provide evidence that might overcome this information. (Another ATP denial—no response to AAO’s RFE.)Jan262012_02B5203.pdf As set forth in the directors February 25, 2009 denial, the single issue in this case is whether the petitioner has the ability to pay the proffered wage as of the priority date and continuingAPPEAL DISMISSED until the beneficiary obtains lawful permanent residence. * * * * * Since the petitioner has not established that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its net income or net current assets, USCIS may consider the overall magnitude of the petitioners business activities in its determination of the petitioners ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioners prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioners clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioners determination in Sonegawa was based in part on the petitioners sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioners financial ability that falls outside of a petitioners net income and net current assets. Page 6 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioners business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioners reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that USCIS deems relevant to the petitioners ability to pay the proffered wage. The AAO recognizes that the petitioner has been in business since 1994. Nevertheless, the evidence submitted does not reflect a pattern of significant growth or the occurrence of an uncharacteristic business expenditure or loss that would explain its inability to pay the proffered wage from the priority date. In addition, no evidence has been presented to show that the petitioner has a sound and outstanding business reputation as in Sonegawa. Unlike Sonegawa, the petitioner has not submitted any evidence reflecting the companys reputation or historical growth since its inception in 1994. Nor has it included any evidence or detailed explanation of the corporations milestone achievements. To the contrary, in comparing the petitioners tax returns in the record, the petition appears to be experiencing a significant decline in gross receipts. Also, the petitioners failure to establish that it has paid wages to the beneficiary even though it claims to have employed her since 2001 calls into question the bone fides of the petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (stating that doubt cast on any aspect of the petitioners proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition). Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage. The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.Jan262012_03B5203.pdf Another ATP denial.APPEAL DISMISSEDJan272012_01B5203.pdf The petitioner is a computer and related services company. It seeks to employ the beneficiary permanently in the United States as a computer software system engineer pursuant to Page 7 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSAPPEAL DISMISSED section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2). As required by statute, a labor certification accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. The director denied the petition accordingly. In a request for evidence (RFE) dated October 17, 2011, the AAO requested evidence to establish that the beneficiary possessed the required education for the offered position as set forth in the labor certification. FN1 This office allowed the petitioner 45 days in which to respond to the RFE. In the RFE, the AAO specifically alerted the petitioner that failure to respond to the RFE could result in dismissal of the appeal. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). More than 45 days have passed and the petitioner has failed to respond with proof that the beneficiary possessed the required education for the offered position as set forth in the labor certification. Thus, the appeal will be dismissed as abandoned. ______________ FN1 The AAO conducts appellate review on a de novo basis. The AAOs de novo authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).Jan302012_01B5203.pdf The petition has not been properly filed by a United States employer.FN2 Therefore, we must reject the appeal.APPEAL REJECTED The AAO notes that an AAO investigator spoke with the President of the petitioner who confirmed that the beneficiaryThe I-140 itself was not has resigned from employment with the petitioner and returnedproperly filed! to Korea. Therefore, the appeal is also moot as the job offer is no longer valid.TAKE NOTE: _________ FN2 While the Service Center did not reject the petition, the“AAO Investigator” AAO is not bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 44 F. Supp.2d 800,803 (E.D. La. 2000), affd, 248 F.3rd 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).Jan302012_02B5203.pdf Review of the record shows that the petition has not been properly filed, and therefore there is no legitimate basis to continue with this proceeding.APPEAL REJECTED Page 8 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS * * * * *The I-140 itself was not The AAO notes that an AAO investigator spoke with the President of the petitioner who confirmed that the beneficiaryproperly filed! has resigned from employment with the petitioner and returned to Korea. Therefore, the appeal is also moot as the job offer is no longer valid.Jan312012_01B5203.pdf The petitioner seeks employment as a physician/researcher specializing in hematology and oncology. The petitioner asserts that an exemption from the requirement of a job offer,APPEAL DISMISSED and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. 8 C.F.R. § l03.3(a)(1)(v) states, in pertinent part, "[a]n officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal." On the Form I-290B Notice of Appeal, counsel indicated that a brief would follow within 30 days. To date, a year after the filing of the appeal, the record contains nothing identifiable as a subsequent submission. Therefore, the Form I-290B itself constitutes the entire appeal. The Form I-290B includes a space for the petitioner to "[p]rovide a statement explaining any erroneous conclusion of law or fact in the decision being appealed." Counsel did not identify any erroneous conclusion of law or fact in the directors decision. Instead, counsel repeated several claims that first appeared in correspondence prior to the denial. The director had already addressed these claims, and repeating or modifying them on appeal is not sufficient grounds for appeal.Feb022012_02B5203.pdf In this case, the beneficiary received a bachelors degree on February 25, 2006. The priority date established by the ETA Form 9089 is May 29, 2008. Thus, the petitioner failed toAPPEAL DISMISSED establish that the beneficiary had five years of post- baccalaureate experience as of the priority date, which is the date that he must establish his eligibility for a visa classification as an advanced degree professional. See 8 C.F.R.§§103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. Page 9 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS 45, 49 (Regl. Commr. 1971). Therefore, the petition may not be approved for classification as an advanced degree professional under section 203(b )(2) of the Act.Feb092012_01B5203.pdf The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established thatAPPEAL DISMISSED an exemption from the requirement of a job offer would be in the national interest of the United States. * * * * * The witness statements in the record indicate that the petitioners employers, clients and colleagues hold him in high regard, but the record contains no coherent national interest claim. The petitioner has essentially argued that his past work presented numerous benefits to the United States, and that his future work with Horizon will be beneficial for almost totally different reasons. USCIS does not dispute that the petitioner is well qualified for his position with a successful company, but this does not translate into an issue of national interest.Feb092012_02B5203.pdf The director found that the petitioner qualifies for the underlying classification, but that the petitioner has not established that an exemption from the requirement of a jobAPPEAL DISMISSED offer would be in the national interest of the United States. * * * * * The director did not dispute that the petitioner qualifies as an alien of exceptional ability in business and/or as a member of the professions holding an advanced degree. Which of these two classifications better suits the petitioner is not relevant to this discussion. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.While it is possible to * * * * *obtain EB-2 classification The petitioner filed the Form 1-140 petition on May 12, 2010.and a NIW as an At the same time, the petitioners spouse filed a separate petition. In a joint statement, both individuals stated:“entrepreneur”, a mere“investor” especially if In the summer of 2007 we purchased 35 acres of landmerely investing in in Colorado and during the last, financially difficultresidential real estate will year we have invested $800,000 in local labour,not make the grade. materials and knowledge designing and building an eco-friendly home for our use, hopefully as a permanent residence. As well as the house build [sic]See NYSDOT FN5: we have also owned, for a number of years, 4 weeksFN5 timeshare at a resort on Lake Tahoe. The Service acknowledges Page 10 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSthat there are certain In addition I believe that both of us bring imaginativeoccupations wherein and distinctive skills to our respective areas ofindividuals are essentially competence that would enhance any business whereself-employed, and thus would these could be utilised.have no U.S. employer toapply for a labor certification. While substantial, the petitioners investment in a house andWhile this fact will be given surrounding real estate does not qualify the petitioner for andue consideration in employment-based immigrant classification.appropriate cases, theinapplicability or unavailabilityof a labor certification cannotbe viewed as sufficient causefor a national interest waiver;the petitioner still mustdemonstrate that the self-employed alien will servethe national interest to asubstantially greater degreethan do others in the samefield.Feb152012_05B5203.pdf As set forth in the directors July 8, 2009 denial, the single issue in this case is whether the petitioner has the ability to pay the proffered wage as of the priority date and continuing untilAPPEAL DISMISSED the beneficiary obtains lawful permanent residence. * * * * * Beyond the decision of the director, the petitioner has also not established that the beneficiary is qualified for the offered position. * * * * * Here, the beneficiary possesses a bachelors degree. Thus, the beneficiary must also possess five years of progressive experience in the job offered. The beneficiarys claimed qualifying experience must be supported by letters from employers giving the name, address, and title of the employer, and a description of the beneficiarys experience. See 8 C.F.R. § 204.5(g)(1). The record contains various employment verification letters. However, these letters are insufficient to support the claimed work experience because they do not provide a sufficient description of the job duties for the beneficiary. The evidence in the record does not establish that the beneficiary possessed the required experience set forth on the Page 11 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS labor certification by the priority date. Therefore, the petitioner has also failed to establish that the beneficiary is qualified for the offered position.Feb162012_01B5203.pdf This Decision is worth reading for the discussion of(Stamped: FEB 10 2012) degree equivalency determinations and its discussion of the hierarchy of laws.APPEAL DISMISSEDFeb172012_01B5203.pdf Another ATP Denial BUT this case is worth reading for the in-depth discussion of the issues involved.APPEAL DISMISSEDFeb172012_03B5203.pdf The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established thatAPPEAL DISMISSED an exemption from the requirement of a job offer would be in the national interest of the United States.Feb212012_01B5203.pdf The director found that the petitioner did not establish that she qualifies for classification as a member of the professions holding an advanced degree, or that an exemption from theAPPEAL DISMISSED requirement of a job offer would be in the national interest of the United States. * * * * * The petitioners response included a copy of the envelope that had contained the RFE. The date on the postmark, October 22, 2009, was six days after the date on the RFE itself. Counsel correctly observed that the petitioner was, therefore, entitled to an additional six days to respond past the stated November 27, 2009 deadline. The director did not properly serve the RFE until the mailing date. See 8 C.F.R. § 103.5a(b). The director correctly accepted the petitioners response, received November 30, 2009, as timely. The petitioners response to the RFE included evidence that she holds two bachelors degrees. This evidence does not address the directors concerns. If the petitioners occupation does not qualify as a profession, then the petitioners academic degrees are irrelevant. The petitioners possession of those degrees does not imply that any of those degrees is the minimum requirement for entry into the occupation. The petitioner did not acknowledge or respond to the Department of Labor information cited by the director, indicating that many registered nurses do not hold at least a baccalaureate degree. Page 12 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS This information, on its face, indicates that registered nursing does not meet the regulatory definition of a profession. The petitioner effectively conceded the point by offering no rebuttal whatsoever.Feb212012_02B5203.pdf The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established thatAPPEAL DISMISSED an exemption from the requirement of a job offer would be in the national interest of the United States.Feb212012_04B5203.pdf As set forth in the directors August 28, 2009 denial, the single issue in this case is whether the beneficiary possessed a masters degree in the major field listed on the ETA FormAPPEAL DISMISSED 9089.Feb242012_01B5203.pdf The petitioner seeks classification pursuant to section 203 (b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holdingAPPEAL DISMISSED an advanced degree. The petitioner seeks employment as an academic professional at the Georgia Institute of Technology (Georgia Tech), Atlanta. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. * * * * * The petitioner filed the Form 1-140 petition on September 13, 2010. In an accompanying statement, prior counsel stated that the petitioner "has demonstrated outstanding expertise in instructional technology, particularly as it relates to the foundational research and development of distance and online education." Prior counsel contended that the petitioners "innovative and novel contributions ... prove her ability to provide significant, essential, and vital benefits to critical national interests. She has a truly impressive record of success that has had a considerable impact on her field." Prior counsel asserted that the labor certification process cannot take the petitioners special expertise and contributions into account, and "failure to consider these factors could result in a denial of a labor certification." Prior counsel therefore concluded that "requiring a labor certification would adversely affect the national interest." Page 13 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS Prior counsels hypothetical conjecture about labor certification is now moot. There is no longer any question of whether or not an employer could obtain a labor certification on the petitioners behalf. USC1S records show that, on May 6, 2011, Georgia Tech applied for such a labor certification. The Department of Labor approved the labor certification on July 7, 2011, and Georgia Tech used it to file a new Form 1-140 petition on August 1, 2011. The director approved that petition four days later, on August 5, 2011.Feb242012_04B5203.pdf As set forth in the directors August 28, 2009 denial, the single issue in this case is whether the beneficiary possessed the required experience for the offered position as set forth in theAPPEAL DISMISSED ETA Form 9089. * * * * * In evaluating the requirements for the offered position, U.S. Citizenship and Immigration Services (USCIS) must look to the job offer portion of the labor certification. USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. Cal. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coorney, 661 F.2d 1 (1st Cir. 1981).Mar052012_01B5203.pdf On the Form I-290B Notice of Appeal, counsel checked a box reading "No supplemental brief and/or additional evidence will be submitted." Therefore, the initial appellate submissionAPPEAL SUMMARILY constitutes the entire appeal. The petitioner submitted noDISMISSED exhibits on appeal except for a copy of the denial notice. The Form I-290B includes a space for the petitioner to "[p]rovide a statement explaining any erroneous conclusion of law or fact in the decision being appealed." In a one-sentence statement, counsel states: "[The petitioner] has demonstrated that she is an alien of exceptional ability whose work will substantially benefit the United States." In an accompanying letter, counsel states: The Service questions whether [the petitioner] meets a level of expertise necessary to qualify for this classification. We respectfully again point to the evidence initially submitted with the original filing, as well [as] the response to the request for evidence, showing that her work does demonstrate that [the petitioner] does qualify for this classification. Page 14 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS Counsel, however, does not elaborate or explain how the director failed to take the petitioners previous evidence into consideration. Counsel does not allege any specific factual or legal errors or other deficiencies in the directors decision. Counsel merely asserts that the director should have approved the petition, which is not a sufficient basis for a substantive appeal. Because counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis for the appeal, the AAO must summarily dismiss the appeal.Mar062012_01B5203.pdf The Form I-290B includes a space for the petitioner to "[p]rovide a statement explaining any erroneous conclusion of law or fact in the decision being appealed." Counsel states:APPEAL SUMMARILYDISMISSED The record reflects through [the petitioners] leading roles at prominent medical institutes along with his history of original and pioneering publications and significant contributions to the field of hematology and oncology that [the petitioner] has demonstrated that (1) his work has had substantial intrinsic merit; (2) the impact of his work has spread beyond his hospital community and had a significant national influence in improving healthcare; and (3) [the petitioners] abilities are extraordinary and stand above his peers, such that a waiver of the labor certification process would be in the national interest. Counsel does not elaborate as to the nature of the claimed "leading roles" and "significant contributions." The director, in the denial notice, had questioned earlier, similar claims by counsel. Counsel cannot rebut the directors findings simply by repeating the vague assertion that the petitioners work has been important.Mar122012_01B5203.pdf The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established thatAPPEAL DISMISSED an exemption from the requirement of a job offer would be in the national interest of the United States. * * * * * The AAO also notes that the regulation at 8 C.F.R. § 204.5 (k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a given area Page 15 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS of endeavor. By statute, aliens of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise.Mar282012_03B5203.pdf The petitioner is a law firm. It seeks to employ the beneficiary(Stamped MAR 29 2012) permanently in the United States as a legal researcher pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U .S.C. § 1153(b )(2). As required by statute, aAPPEAL DISMISSED labor certification accompanied the petition. The director determined that the terms of the labor certification did not require a professional holding an advanced degree. The director denied the petition accordingly. In a request for evidence (RFE) dated January 17, 2012, the AAO requested evidence to establish that the petitioner has the ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and continuing up to the present.FN1 Specifically, the petitioner was instructed to submit Forms W-2 or 1099 (if any) for the beneficiary for 2007, 2008, 2009, 2010, and 2011, and tax returns or audited financial statements for the petitioner for 2007, 2008, 2009, and 2010. The AAO also noted that, according to the website of the New York State Supreme Court and the law firm [REDACTED], it appears that the partners in the petitioner are employed elsewhere and the petitioning limited liability partnership is no longer in business. This office allowed the petitioner 45 days in which to respond to the RFE. In the RFE, the AAO specifically alerted the petitioner that failure to respond to the RFE could result in dismissal of the appeal. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). More than 45 days have passed and the petitioner has failed to respond with proof that it has the ability to pay the beneficiary the proffered wage. Thus, the appeal will be dismissed as abandoned. * * * * * FN1 The AAO conducts appellate review on a de novo basis. The AAOs de novo authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Page 16 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSMar292012_01B5203.pdf The petitioner is a computer systems consulting company. It seeks to employ the beneficiary permanently in the United States as a systems analyst pursuant to section 203(b)(2) of theAPPEAL DISMISSED Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, a labor certification accompanied the petition. The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly. In a request for evidence (RFE) dated December 29, 2011, the AAO requested evidence to establish that the petitioner has the ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and continuing up to the present.Apr022012_01B5203.pdf The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding anAPPEAL DISMISSED advanced degree. At the time she filed the petition, the petitioner was a postdoctoral researcher at the California Institute of Technology (CalTech). U.S. Citizenship and Immigration Services (USCIS) records indicate that she now works at [REDACTED]. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. * * * * * As is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified to engage in a profession in the United States should be exempt from the requirement of a job offer based on national interest. Likewise, it does not appear to have been the intent of Congress to grant national interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement of an approved labor certification will be in the national interest of the United States. Page 17 of 21
    • LINK & RESULT REMARKS and/or EXCERPTSApr022012_02B5203.pdf The petitioner seeks employment as a graphic designer at the Brooklyn (New York) Institute of Arts and Sciences, doing business as the Brooklyn Museum of Art (Brooklyn Museum).APPEAL DISMISSED The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding the defined equivalent of an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. * * * * * In response, the petitioner submitted additional witness letters and arguments from counsel. Counsel stated: [T]he Notice of Intent to Deny (NID) ... completely misunderstands why the work of the self-petitioner ... is in the national interest of the US. It states that her work as a graphic designer for two of Americas leading museums is significant only in the field of art, and completely overlooks or dismisses her work in promoting greater understanding between Muslims and non-Muslims through her work as a graphic designer who was instrumental in preparing a groundbreaking educational booklet dealing with Muslim art and culture. The petitioner herself did not originally state that a primary purpose of her work was "promoting greater understanding between Muslims and non-Muslims," and no evidence in the initial submission conveys that impression either. No witness referred to a mutual "greater understanding between Muslims and non-Muslims." stated that the Islamic Art booklet fosters "appreciation and respect for Islamic culture among young Americans," but did not claim any reciprocal effect on Islamic understanding of the United States. Even then, the initial submission gives the petitioner some credit for the layout of the booklet, but not its substantive content (which is adapted from an earlier publication that is older than the petitioner herself). Only in response to the notice of intent to deny did the petitioner, through counsel, shift the emphasis to understanding of the Islamic community.Apr032012_01B5203.pdf The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), as a member of the professions holding anAPPEAL DISMISSED advanced degree. The petitioner seeks employment as the Page 18 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS president of a new "company specializing in sales, servicing and export of consumer electronics." At the time he filed the petition, the petitioner was a business development specialist at Equus Computer Systems, City of Industry, California. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner submits a brief and copies of materials already in the record. Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). Supplementary information to regulations implementing the Immigration Act of 1990, published at 56 Fed. Reg. 60897, 60900 (November 29,1991), states: The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits. Matter of New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Commr 1998), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will Page 19 of 21
    • LINK & RESULT REMARKS and/or EXCERPTS serve the national interest to a substantially greater degree than would an available United States worker having the same minimum qualifications. While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the aliens past record justifies projections of future benefit to the national interest. The petitioners subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The intention behind the term "prospective" is to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative. The AAO also notes that the regulation at 8 C.F.R. § 204.5 (k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise.I find it interesting that AAO mentions “AAO Investigators” in some of thesedecisions. In which branch would they be found? Can you guess?According to the agency website:The AAO is currently composed of 88 employees divided into nine branches. Page 20 of 21
    • Branch 1 is responsible for appeals of denials of I-129 H, L, O, P and Qpetitions and N-470 petitions.Branch 2 is responsible for appeals of denials of applications for TemporaryProtected Status.Branch 3 is responsible for appeals of denials of I-129F, I-131, I-212, I-360petitions other than Amerasians and special immigrant religious workerpetitions, I-600 and I-600A orphan petitions, I-914 and 1-918 T and U visapetitions and the relating adjustment applications, I-485 certified denials,Section 13 adjustment applications, and I-800A adoption applications.Branch 4 is responsible for appeals of denials of I-360 Amerasian and SpecialImmigrant Juvenile petitions, I-601 and I-612 waivers, N-565, and N-600applications.Branch 5 is responsible for appeals of denials of petitions filed on behalf ofaliens of extraordinary ability, special immigrant or nonimmigrant religiousworkers, immigrant investors, and outstanding professors and researchers. Inaddition, Branch 5 is responsible for appeals of denials of Regional CenterApplications and of bond breaches issued by U.S. Immigration and CustomsEnforcement.Branch 6 is responsible for appeals of denials of denied employment-basedsecond and third preference immigrant visa petitions for professionals, skilledand unskilled workers and I-905 healthcare worker petitions.Branch 7 is responsible for appeals based on the 1986 Immigration Reformand Control Act.The Appeals Fraud Branch assists appeals officers in the detection anddeterrence of fraud in immigration matters.The Management Support Branch provides support to the managers andemployees of the AAO in the areas of budget and finance, facilities and officeservices, human resources, and contract file room oversight. Page 21 of 21