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INA Programmatic Approaches v Individualized case by case Analysis 8 28-11…
 

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    INA Programmatic Approaches v Individualized case by case Analysis 8 28-11… INA Programmatic Approaches v Individualized case by case Analysis 8 28-11… Document Transcript

    • Blanket Petition or Programmatic Approach versus Individualized Case-By-Case Analysis By Joseph P. Whalen (August 28, 2011)I. IntroductionThe various benefits available under the Immigration and Nationality Act (INA) are defineddifferently in terms of qualifications and eligibility. There is diversity as to the processesemployed in making determinations for, and allocation of, such benefits as well as the actualsubstance of the various benefits bestowed. Some INA benefit categories are of a permanent orsemi-permanent nature, while others are temporary in nature and of short to long-term duration,or conditional in nature. Among the myriad of benefit possibilities in the INA some lendthemselves to a Programmatic Treatment while others are decidedly specific to the individualpetitioner, sponsor, applicant, or beneficiary. Lastly, some are a mixed bag, a real potpourri, orin other words, just not that simple. These last INA benefits are quite appropriately treated invarious group contexts, or progressively in stages, or some inter-related mannerII. Highly Individualized Benefit CategoriesThe highly individualized cases must be examined in a heightened manner based on the carefuland sometimes painstaking dissection and distillation of the evidence submitted, in the context ofthe specific evidentiary criterion one seeks to prove and establish. Most familiar of theseindividualized benefits are naturalization, recognition of citizenship, family-based immigrantpetitions, or adjustment of status to lawful permanent residence.As a further example of this, consider the EB-2 non-physician or “standard” National InterestWaiver (NIW). “It is the position of [USCIS] to grant national interest waivers on a case by casebasis ... [as demonstrated by the evidence in the individual record] ..., rather than to establishblanket waivers for entire fields of specialization.” See Matter of New York State Dept. ofTransportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). Additionally, aliens ofextraordinary ability, or of exceptional ability, or with specialized knowledge, or in specialtyoccupations; are all regulated specifically in accordance with the statutorily definedclassifications, or the actual position offered by the employer as per an approved laborcertification, and each is a person-centric adjudication as to the individual beneficiary.III. Non-Complex Programmatic Benefit CategoriesA. Emergencies and Humanitarian ProgramsSome very simple examples of programmatic treatment of certain classes of aliens are thosebeing treated as a group with shared qualities and/or qualifications as the result of a naturaldisaster or civil unrest in the country of origin or geographic region, i.e., extensions of TPS:Temporary Protected Status under INA § 244, or Haitian F-1 Students’ work authorization, orLiberians with Deferred Enforced Departure (DED) work authorization. While these examplesare extreme and emergent programs, there are also regularly available benefit classes whether,complex and limited, or run-of-the-mill classes that are treated programmatically. Page 1 of 8
    • B. Routine Programmatic TreatmentConsider the Blanket Petitions for the “L” non-immigrant intra-company transferees, H-2Aagricultural workers, or H-2B non-agricultural seasonal workers, wherein, it is not even requiredto name any beneficiaries up front. Those INA benefits and the employers’ required processesare primarily designed to facilitate the adequate supply and flow of specific types of workers forspecific types of jobs but are not primarily concerned with the individual beneficiary’squalifications in the blanket process. While the blanket process may be used to narrow the typeof worker sought, that type is somewhat broad and generalized. Initially, it is the employer whomust make a showing about itself, the working conditions, ability to pay and otherwisecompensate the desired workforce, and its actual and/or anticipated labor needs. The actual non-immigrant workers and their individual qualifications are of peripheral concern to DOL and/orUSCIS at this initial stage. The qualifications of the individual workers will be of more concernlater when they apply for visa with DOS, or to CBP at time of entry, or with USCIS when thealien seeks to change or extend status.IV. Complex Hybrid Programmatic Benefit CategoriesA. Q-1 Cultural Exchange ProgramsCertain INA benefits combine programmatic aspects in the process and are equally concernedabout the individual applicant’s or beneficiary’s very specific qualifications. The CulturalExchange Visitor Q-1 non-immigrant visa is a prime example of a hybrid category. The programsponsor must qualify its program as one that entails a true cultural exchange within the meaningof the statute and regulations. However, that is only one component of the adjudication decision.The individual beneficiary must also qualify to participate in the qualified Program..The sponsor’s Q-1 Program itself may be completely rigid, static, and unchanging; or it may bedynamic and fluid as to that particular petitioner’s Cultural Exchange Program. The Programmay have a steady framework that operates within set parameters which allows for a wide rangeof individual beneficiaries to carve out a particular niche. The individual beneficiary’s evidencewill have to show that (s)he fits into and qualifies for the particular Program as defined by thesponsor and as presented to USCIS for designation as a qualified Cultural Exchange Program.1. The following is an excerpt from one recent non-precedent AAO Decision found at:Aug112010_01D10101.pdf “III. Prior Approvals and Conclusion The AAO acknowledges that USCIS previously approved many Q-1 nonimmigrant petitions filed by the petitioner on behalf of various beneficiaries. Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate burden of proof. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of Page 2 of 8
    • proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Despite any number of previously approved petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 29 1 of the Act. As discussed above, given the petitioners practice of hosting three different sets of artists in each calendar year, any given session of the program would reasonably be unique based on the characteristics of the artists chosen for residency. For this reason, the AAO finds it reasonable to evaluate the petitioners program on a case-by-case basis. A session that includes an alien artist whose work is demonstrably tied to the culture of his or her home country would likely meet the cultural and work component requirement set forth in the regulations. The AAOs finding that the petitioner failed to establish that the instant beneficiary would be sharing German culture as an integral and essential component of her employment should not be construed as a finding that any or all prior Q- 1 approvals were granted in error. Further it should be noted that we do not question the intrinsic artistic value of the beneficiarys work, or the benefit to the community that undoubtedly arises from the petitioners artist-in-residence program, educational activities and public outreach programs. [Emphases added.] In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met.” At pp. 14-152. Sometimes changes happen through new legislation, new regulations, new Precedents, orsometimes past mistakes get caught and corrected. This next example shows a change in theProgram from what had been presented in previous proceedings for prior beneficiaries whowere approved. Dare I call this an example of an impermissible “material change”?This next Q-1 excerpt is found at: Apr222010_01D10101.pdf “IV. Conclusion The AAO acknowledges the petitioners claim that the USCIS has approved many prior petitions filed by the petitioner, including one prior petition that was approved by the service center and certified to the AAO. It must be emphasized that that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. §103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). If the previous petitions were approved based on the same unsupported assertions that are contained in the current record with respect to the wages offered to the beneficiaries, the approvals would constitute material and gross error on the part of USCIS. The current record introduces new inconsistent claims regarding which party is responsible for paying the beneficiaries room and board, and the AAO has taken notice that the petitioner requires the beneficiaries to pay fees for their participation in the petitioners program. The AAO is not required to approve applications or petitions where eligibility Page 3 of 8
    • has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). A review of the AAOs prior decision shows that it was limited to a discussion of whether the petitioners international cultural exchange program met the requirements for program approval set forth at 8 C.F.R. § 2 14.2(q)(3)(iii), as it perceived this issue to be the primary reason for the directors decision to certify the decision to the AAO. Unlike the previous petition reviewed by the AAO, the current record clearly raised significant concerns regarding the payment scheme used by the petitioner to compensate the beneficiaries, as the director denied the petition, in part, based on the petitioners failure to satisfy 8 C.F.R. § 2 14.2(q)(4)(i)(D). Despite any number of previously approved petitions, USCIS does not have authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met.” At pp. 13-143. The following is a case wherein a prior mistake is acknowledged but that realization cannotserve as a reason to continue approving beneficiaries for an unqualified Program. This excerpt isfrom a case decision found at: Aug192010_02D10101.pdf “The AAO acknowledges that USCIS previously approved two Q-1 nonimmigrant petitions filed by the petitioner. The prior approvals do not preclude USCIS from denying an extension of the original visa petition based on reassessment of the petitioners qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The mere fact that USCIS, by mistake or oversight, approved a visa petition on one occasion does not create an automatic entitlement to the approval of a subsequent petition for renewal of that visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); see also Matter of Church Scientology Intl., 19 I&N Dec. 593, 597 (Comm. 1988). For example, if USCIS determines that there was material error, changed circumstances, or new material information that adversely impacts eligibility, USCIS may question the prior approval and decline to give the decision any deference. [Emphases added.] Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate burden of proof. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Despite any number of previously approved petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a Page 4 of 8
    • subsequent petition. See section 291 of the Act. If the petitioner routinely submits the same types of evidence in support of its Q petitions, then it is likely that the prior petitions were also approved without sufficient evidence of eligibility in the record. Such approvals would constitute material and gross error on the part of the director. Neither the director nor the AAO is required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988).” At pp.11-12B. EB-5 Immigrant Investor Pilot ProgramOne of the more complex hybrid categories is that of the EB-5 “employment creation” immigrantinvestor or entrepreneur visa classification and the associated Regional Center Designation.Collectively, this is the Immigrant Investor Pilot Program. See 8 USC § 1153 Note and INA §203(b)(5) [8 USC § 1153(b)(5)]. This Program also includes the petition to lift conditions whichis a follow up procedure to ensure compliance with the plans (whatever they may have been) putforth earlier in the process. This particular INA benefit is multifaceted, complex and involvesmultiple participants.The vast majority of EB-5 investors participate through a USCIS Designated Regional Centerprimarily for the purpose of being able to count “indirect jobs” but, also for the purported easeand passivity involved. The overarching coordinated responsibilities of: project planning, EB-5and other legal compliance considerations, and the coordination of multiple investors whichincludes the EB-5 immigrants (and dependents), non-EB-5 foreign investors, and domesticinvestors; should be shouldered by the Regional Center. It is not a simple process to become aDesignated Regional Center. The Regional Center application must be supported by solidevidence including at a minimum: a comprehensive, detailed, credible business plan that issupported by a sound and verifiable economic analysis containing viable predictions as toregional or national economic benefits and job creation projections.The individual immigrant investors will simply take the basic evidence provided by the RegionalCenter that was used to support its USCIS Designation plus standardized transactiondocumentation and add individualized financial documentation. Similarly to the Q-1 CulturalExchange Program mentioned previously this Immigrant Investor Program must stand up toscrutiny at this stage as specifically applied to the individual alien beneficiary’s participation init. Just like the Cultural Exchange Program, when the current record introduces newinconsistent claims regarding a Regional Center’s Investment Program, previous approvals ofother beneficiaries’ petitions will not serve as a basis to approve a currently unqualified EB-5investor. In addition, such revelations about impermissible “material changes” to that particularRegional Center’s Investment Program as discovered in an individual investor’s case may haveramifications on other individual cases and the Regional Center Designation itself.In addition to the initial EB-5 visa classification petition, there is also the follow-up petition tolift conditions from the alien’s status approximately two years down the road. That “lifting ofconditions” process involves a “back-end burden of proof” to substantiate the desired projectedresults. At the earlier stage, a plan was presented, at the back-end, the alien with the help of the Page 5 of 8
    • Regional Center must demonstrate with solid evidence that the full amount of capital wasinvested and the jobs have been created. In other words, USCIS is hoping to, and is onlyexpecting to, do a straight forward fact-check to see that the comprehensive plan has come tofruition or is on the cusp of achieving the goals within a reasonable period of time. As sometimeshappens in life, plans do not always work out as we would like but sometimes they do.1. From the latest AAO non-precedent Decision posted on the agency website (and that is forALL posted categories), the following is found at: Apr142011_01B7203.pdf “The petitioners evidence regarding its direct qualifying employees is not relevant, probative or credible. Doubt cast on any aspect of the petitioners proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. The submitted evidence in this matter is so flawed, that there is no established number of direct jobs that can be used for the multiplier. Even if we were to consider the claims in a light most favorable to the petitioner, and apply the 2.66 multiplier to the non-qualifying direct jobs, the resulting number would not satisfy the statutory minimum. The petitioner has not submitted consistent, probative, and credible evidence that Mr. and Mrs. [REDACTED] worked as direct employees; therefore, the petitioner has only established 14 direct jobs. Applying the multiplier to 14 direct jobs results in 37.24 jobs. As the multiplier represents total job creation (direct and indirect), we must subtract the 13 direct jobs filled by non-qualifying employees for a total of 24.24 jobs. As noted by the director, two alien investors already removed conditions based on these indirect jobs; therefore, we must subtract the 20 jobs that have been allocated to them. Thus, we could not allocate more than four of the indirect jobs to the petitioner. See 8 C.F.R. § 204.6(g)(2). With respect to the other two alien investors who have removed conditions, the AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). [Emphasis added.] Furthermore, the AAOs authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if the service center director had approved Form 1-829 petitions for two other investors, the AAO would not be bound to follow the contradictory decision of a service center. See Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff’d, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). Finally, there are serious legal concerns about allowing an enterprise to calculate indirect job creation based on the actual employment of unauthorized aliens. In the certified decision, the director stated that "allowing this practice may be contrary to the Page 6 of 8
    • spirit of the law as the statute is designed to encourage job creation for qualifying employees." The AAO concurs that allowing the application of a multiplier to non- qualifying jobs would likely result in eligibility for petitioning aliens who are unable to document the creation of any jobs for qualifying employees. This outcome is inconsistent with Congressional intent to create jobs for qualifying employees. See 136 Cong. Rec. S17106-01, 17107, 1990 WL 165401.” At pp. 16-17The above passage is not about a flawed premise in a business plan or the economic analysis thatwas used to support it. Neither the Director or AAO ultimately had to go behind the previouslyapproved methodology for calculating the indirect jobs (the Director tried but was stopped).Rather, fault was found with its later application. In this case, there was no material change butinstead, a failure to achieve predicted goals, i.e., employment of “qualified U.S. workers” as thebase figure of direct employees to which to apply the previously approved multiplier.2. The preceding case involved a petition to remove conditions. It failed to show meet the “back-end burden of proof” as to job creation. The next case involves the petition of an investor seekingto begin an association with a Regional Center. The Regional Center made material changes andfailed to disclose those changes, or seek a timely amendment before allowing this investor to filean individual petition. Not having been in the room with the investor, his/her counsel, and anyRegional Center representative when it was decided to file that particular investor petition, it canonly be speculation as to who decided that the time was right to file it. Whoever it was failed toconsider all the fine details.The following excerpt is found at: Sep212010_01B7203.pdf “The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1153(b)(5). The petitioner claims eligibility based on an investment in a regional center pursuant to section 610 of the Judiciary Appropriations Act, 1993, Pub. L. 102-395 (1993) as amended by section 402 of the Visa Waiver Permanent Program Act, 2000, Pub. L. 106-396 (2000). The regional center, the Capital Area Regional Center Job Fund (CARc), was designated as a regional center by U.S. Citizenship and Immigration Services (USCIS) on November 25, 2005. On May 20, 2008, USCIS issued an e-mail acknowledging that CARc had obtained a new escrow agent and had a new address. Subsequently, aliens began filing Form I-526 petitions based on an investment in CARc. These petitions were supported by substantially amended agreements from those submitted with the original regional center proposal in 2005. The Form 1-526s petitions did not disclose that these agreements had been amended from the 2005 agreements. In response to concerns raised by the Director, Texas Service Center (TSC), confirmed by the AAO on certification, CARc sought an amendment of the proposal in March 2009, which was approved. The CSC director approved a June 2009 amendment request on December 23, 2009. The director determined that the petitioner had filed to demonstrate that the original business plan and projections continued to be viable. The director also determined that the petitioner had not established the lawful source of funds. The director certified the notice of denial to the AAO pursuant to 8 C.F.R. 103.4. In compliance with the regulation Page 7 of 8
    • at 8 C.F.R. § 103.4(a)(2), the director provided notice to the petitioner, through counsel, and advised that a brief could be submitted directly to the AAO within 30 days. In response, counsel, through the submission of a brief by [REDACTED] asserts that the regional center is seeking a second approved amendment to the regional center proposal that will include the regional centers current business plan. The director approved the amendment request on December 23, 2009. Significantly, the director advised: "This project approval in conjunction with the most recent approved general proposal amendment will allow current investors in this project to proceed with refiling their respective Forms I-526, Immigration Petitions by Alien Entrepreneurs with the appropriate fee."...” At p. 2 “.... A May 20, 2008 e-mail message from FTIRCP to CARcs counsel confirms CARcs use of a new escrow agent and the companys address change. This detailed email message makes no mention of amendments to the operating agreement other than those changing the escrow agent. These documents do not support [REDACTED’s] claim that CARc repeatedly sought approval of the amended agreements and relied on some type of informal communication that the agreements were acceptable.” At p. 8It is clear that the separate and independent actions of the various participants in the EB-5Immigrant Investor Program may have significant effects on the others involved in the projects.Those independent actions must therefore be closely coordinated or else they may have seriousnegative ramifications for the other participants. It is standard practice for Regional Centers tocharge a substantial fee to the alien investors (often called a subscription fee) of anywhere from$20,000 to $80,000+ above and beyond the minimum investment amount required by law.Purportedly those fees will be used, at least in part, to fund business plans and economic analysesand other tasks specific to that alien investor’s participation in the Regional Center sponsoredproject. Investor specific expenditures may include vetting of funds and pre-screening againstgrounds of inadmissibility for the principal and dependents but usually does not include USCISfiling fees and/or immigration attorney fees. Timely amendments necessitated by significantmaterial changes in investment strategies as well as the project-specific business plans,economic analysis, and/or standardized shared transaction documentation would seem to beviable expenditures for those fees. The filing fee for the amendment would be $6,230 dividedamongst ALL the affected individual investors in the project is a small percentage of the base feecharged. In that USCIS is reworking the EB-5 Program at this time, it may come up withalternative methods such as the exemplar I-526 or even an I-290B Motion to facilitate smallerscale and quicker material changes.V. ConclusionThe INA contains a wide array of possible benefits. Such benefits vary greatly. Some of thecontexts are highly specific to the individual while others are broader and applicable to largegroups. Still others are combinations that entail broader group or collective aspects but also haverequirements that are specifically applicable to the individuals within such collectives. All-in-all,there are variable contexts at play which may be difficult to differentiate between at times. Ashas been said before and still holds true: It’s just not that simple. Page 8 of 8