Purposes and functions of USCIS petitions applications motions and appeal, etc...

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Purposes and functions of USCIS petitions applications motions and appeal, etc...

  1. 1. e-mail: joseph.whalen774@gmail.com Page 1 Purposes and Functions of USCIS Petitions, Applications, Motions, and Appeals etc… By Joseph P. Whalen (October 5, 2013) In the course of my periodic intensive reviews of AAO Administrative Decisions (Non Precedent Decisions) posted on the USCIS website, it has occurred to me that many practitioners have difficulty grasping the differences between the various items listed in the title of this article. I shall endeavor to share my conceptualization of the purposes and functions of them. My understanding should be taken as a given in the numerous articles that I write but I thought it might be helpful to my loyal readers to simply spell it out blandly and bluntly. Here goes! USCIS Petitions, Applications, Motions, and Appeals each have a specific purpose and function, as well as statute(s) and/or regulation(s) underlying it. They can be confusing and anywhere from slightly to highly complex. USCIS Petitions USCIS Petitions, in my mind, are requests for “classification” of one sort or another. These entail establishing some form of qualifying “relationship(s)” and/or specific “qualifications”. Collectively, the relationship(s) and associated qualifications, such as employment experience, required education, and/or specific training are known as “eligibility criteria”. All petitions, as far as I can tell, entail establishing facts and/or circumstances in accordance with at least one legal definition, sometimes more than one. There are “family-based”, “employment- based”, and “specific” or “special” varieties of classification petitions. The family-based petitions demand that there be a specific familial relationship in existence at some point, usually “at time of filing” the instant petition. I say usually because I am including the I-360 which is used by widows, widowers, orphaned children, or some parents of a deceased petitioner. In addition, special provisions allow for the continuation of processing for an immigrant visa when a petitioner or primary/principal beneficiary has died prior to completion of the immigration process and/or entry to the U.S. on a valid immigrant
  2. 2. e-mail: joseph.whalen774@gmail.com Page 2 visa. These various terms and therefore the relationships are defined by law. Family-Based: Spouse, widow(er); child: natural in-wedlock; natural out-of-wedlock which includes the legitimated child or bona fide parent-child relationship; stepchild; adopted child; and orphan; parent is also specifically defined but relates back in most cases to the applicable definition of child; and lastly siblings who are NOT defined unto themselves but are instead defined by reference to having both met the applicable definition of child as applied to a common parent, as defined by law. WOW! Employment-Based: There are five (5) broad categories with a variety of sub-classifications or variants of employment-based immigrant petitions and even more non-immigrant worker classifications to contend with. Each variety of visa is dependent on the laws specifically addressing it. These petitions are often misunderstood to be solely reliant upon and sometimes too focused upon establishing the “qualifications” alone without a thought to the specific “relationship(s)” that also must be proven and exist. When I speak of “relationships” in the employment-based context I am referring to the “employer-employee” and “business-to-business” relationships most often encountered. There is also the oddball situation where the “importing employer” is also a “relative” of the beneficiary which throws another monkey-wrench into the works. The H1-B is a prime example where the prospective or continuing “employer-employee” relationship must be proven, but also for the L-1 intracompany transferee or E1-3 multinational executive or manager, who must demonstrate a qualifying and pre-existing employer-employee relationship between petitioner and beneficiary. The L-1 and E1-3 have an additional relationship issue to contend with beyond that found between employer and employee. The “business-to-business” relationship between the beneficiary’s foreign employer and the U.S. employer who is filing the petition must be fully demonstrated and documented to the satisfaction of USCIS. That relationship must be in accordance with the statutory language and as refined either by another statutory provision or
  3. 3. e-mail: joseph.whalen774@gmail.com Page 3 applicable regulations or perhaps a precedent decision. There are many times when the “business-to-business” relationship is the critical factor in these petitions. One MUST qualify to file any type of petition. In the context of the intracompany transferee (L-1) or multinational executive or manager (E1-3), where the employer is itself composed of multiple components, including but not limited to parent companies, subsidiaries, and/or affiliates etc… within its overall or umbrella “organization”, the concept of employer is loosely defined but not open-ended. There will be situations where the connection is too tenuous and the nexus between the foreign and U.S. employers ceases to be possible, plausible, probable, and most of all credible. For example, where services and/or products of foreign company A will be paid for by U.S. company B to purchase and perhaps install and/or maintain equipment, processes/procedures, software etc..., and apply its proprietary knowledge on behalf of company B; is not a qualifying relationship in that it is actually a “seller or service- provider-to-customer” relationship. As such company B who is merely the “customer” cannot petition on behalf of any employee of company A because no proper and qualifying business relationship exists to justify filing any intracompany transferee I-129 petition or multinational executive or manager I-140 petition. The above described situations involve determinations based upon specific-fact-dependent judgments-on-the-merits and will be “findings-of-fact” by an adjudicator based upon the evidence presented and any arguments submitted on brief as well as any and all narrative statement(s) offering explanation(s) and; supporting documentation such as: tax filings, contracts, and other business registration or organizational papers. The customer might be serviced by an employee of company A who merely needs a B-1 visa for which there is no petition required. As mentioned above, there are special or specific USCIS forms filed for special or specific relationships or circumstances. The prime example I can think of to start with is the prospective refugee, who is located abroad or applicant for asylum, who is within the U.S. either of whom must meet the statutory definition of refugee found at INA § 101(a) or 8 USC §1101(a): [underlining added for emphasis]
  4. 4. e-mail: joseph.whalen774@gmail.com Page 4 (42) The term “refugee” means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. There are other varieties of special or specific relationships or circumstances that may lead to immigration to the U.S. Another example is someone covered under VAWA (Violence Against Women Act) [it covers more than just battered women]. VAWA allows the battered fiancés, spouses, children (including step or adopted children), as well as the children and in some case parents of these individuals or of the original petitioner to gain refuge due to the abuse that they have endured and suffered. There are more special situations for one to explore beyond those already mentioned such as the “Special Immigrant Juvenile” (SIJ) who has been made a ward of the court or another government entity as but one further example.
  5. 5. e-mail: joseph.whalen774@gmail.com Page 5 USCIS Applications USCIS Applications are requests that go beyond mere classification; they instead are requests for an “actual benefit” under the INA or any other immigration law of the United States. There are many varieties of benefits potentially available; some are short-term and/or temporary which might be an interim benefit on the way to a bigger or permanent benefit; or it might be the best that one can get based on their situation. Withholding of Removal (WOR) or Deferred Enforced Departure, (DED) Temporary Protected Status (TPS), or deferral under CAT1, are some varieties benefits with additional benefits that are also quite tenuous and may be very fleeting. A key prize sought by most individuals in these above named categories is work authorization through the filing of USCIS Form I- 765 in pursuit of the highly coveted EAD (Employment Authorization Document). Others may be equally covetous of obtaining Advance Parole, a Re-Entry Permit (REP); or Refugee Travel Document (RTD) any of which can make departing from and returning to the United States possible. Certain individuals might be in or facing a situation where their individual circumstances have kept them, or could potentially keep them, apart from loved ones for decades. These various immigration benefits mentioned may aid some in their desire to travel or cure their inability to travel. The number one way to fix that problem is to naturalize and get a U.S. passport. USCIS Motions USCIS Motions are made to the “official” that made the last decision in a case. Therefore Motions may be made to the Service Center, Field Office, or District Director, as applicable, or to the AAO. USCIS Motions come in four distinct basic varieties: Motion to Reopen a case denied due to abandonment; regular Motion to Reopen; Motion to Reconsider; and lastly a Combined motion to Reopen and Reconsider. In order to Reopen an Abandoned case which might alternatively be called a Dismissal for Lack of Prosecution, or in the case of an N-400,2 certain Administratively Closed cases; one must 1 U.N. Convention Against Torture…. 2 N-400s are tricky and handled specifically in accordance with statute more detailed than many other immigration benefits.
  6. 6. e-mail: joseph.whalen774@gmail.com Page 6 prove certain limited facts outlined in the law. Let’s start with the last variety mentioned. A Motion to Reopen [denied due to abandonment….]. This variety of Motion is extremely limited and restricted, if one is successful in reopening it, then a stalled case is placed back in action. The result of the underlying case is a whole other matter. 8 CFR § 103.5 Reopening or reconsideration. (a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases— (2) Requirements for motion to reopen. ….. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because: (i) The requested evidence was not material to the issue of eligibility; (ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or (iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address. A regular Motion to Reopen requires one to actually make a better case for approval and back it up with additional evidence but not brand new evidence. If an applicant or petitioner comes up with a new or varied approach, this is the best venue in which to present it. A brand new argument or approach to meeting an evidentiary criterion is not allowed in an AAO a Motion to Reopen, Motion to Reconsider, or Appeal. In a Motion to a “Director”, maybe you might get lucky and they will exercise their authority to re-examine the case sua sponte. AAO rarely uses its sua sponte authority for the benefit of the applicant or petitioner. 8 CFR § 103.5 Reopening or reconsideration. (a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases— (2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be. …. supported by affidavits or other documentary evidence
  7. 7. e-mail: joseph.whalen774@gmail.com Page 7 A Motion to Reconsider requires one to make a specific charge or charges s as to a legal or factual error or errors in the underlying decision based on the evidence already in the record of proceeding. Do not confuse this type of Motion with a Motion to Reopen. That said, the two types of Motions can be combined, more on that below. 8 CFR § 103.5 Reopening or reconsideration. * * * * * (3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. A Combined Motion to Reopen and Reconsider (MTRR) requires one to point out legal and/or factual errors based on the record evidence AND to offer new information/evidence to bolster the case already presented. One cannot make a totally new case via a Motion or Appeal UNLESS the denial brings up a new fact or legal argument not previously addressed by either party. More on that will follow below. USCIS Appeal to AAO An Appeal to AAO demands a showing that the previous decision was wrong. It may be based on an error of fact or law or a combination. This proceeding may be viewed as an opportunity to put the best spin on the evidence already presented as one of the challenges might be that the evidence was weighed incorrectly. Another way of stating that proposition is that “incorrect standard of evidence” was applied to the case. Most immigration cases rely upon the “preponderance of the evidence” standard but a few types of cases have a higher standard such as proving a bona fide marriage by “clear and convincing” evidence or for an EB-1 (extraordinary ability) “clear” evidence of a job offer or that one will enter to “continue to work” in the same type of field of endeavor. The long and short of an appeal is to have AAO examine the case and all the evidence (as permitably supplemented) along with any “clarifications” stated in any brief, narrative, or affidavit(s).
  8. 8. e-mail: joseph.whalen774@gmail.com Page 8 What is [an] APPEAL? In civil practice. The complaint to a superior court3 of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial. Wiscart v. Dauchy, 3 Dall. 321, 1 L. Ed. 019. The distinction between an appeal and a writ of error is that an appeal is a process of civil law origin, and removes a cause entirely, subjecting the facts, as well as the law, to a review and revisal; but a writ of error is of common law origin, and it removes nothing for re- examination but the law. Wiscart v. Dauchy. 3 Dall. 321, 1 L. Ed. G19; U. S. v. Goodwin, 7 Cranch, 108, 3 L. Ed. 284; Cunningham v. Neagle, 135 U. S. 1, 10 Sup. Ct. 058. 34 L. Ed. 55. But appeal is sometimes used to denote the nature of appellate jurisdiction, as distinguished from original jurisdiction, without any particular regard to the mode by which a cause is transmitted to a superior jurisdiction.4 U. S. v. Wonson, 1 Gall. 0, 12. Fed. Cas. No. 10,750. In criminal practice. A formal accusation made by one private person against another of having committed some heinous crime. 4 Bl. Comm. 312. Appeal was also the name given to the proceeding in English law where a person, indicted of treason or felony, and arraigned for the same, confessed the fact before plea pleaded, and appealed, or accused others, his accomplices in the same crime, in order to obtain his pardon. In this case he was called an “approver” or “prover,” and the party appealed or accused, the “appellee.” 4 Bl. Comm. 330. In legislation. The act by which a member of a legislative body who questions the correctness of a decision of the presiding officer, or “chair,” procures a vote of the body upon the decision. In old French law. A mode of proceeding in the lords’ courts, where a party was dissatisfied with the judgment of the peers, which was by accusing them of having given a false or malicious judgment, and offering to make good the charge by the duel or combat. This was called the “appeal of false judgment.” Montesq. Esprit des Lois, liv. 28, c. 27. Above from the Law Dictionary: http://thelawdictionary.org/appeal/#ixzz2h3neSMGx For this discussion, an appeal is a request to re-examine the issue(s) of the particular case as to matters of fact, law, or a combination of them which is generally dealt with as a matter of judgment which is commonly referred to as a mixed question of fact and law. 8 CFR § 103.3 Denials, appeals, and precedent decisions. (a) Denials and appeals— (1) General— (i) Denial of application or petition. When a Service officer denies an application or petition filed under § 103.2 of this part, the officer shall explain in writing the specific reasons for denial. If Form I-292 (a denial form including notification of the right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I-292 constitutes the denial order. 3 In this case, it includes an appeal to higher administrative official, authority, or tribunal. 4 In some cases, a case may be “renewed” before an Immigration Judge in Immigration Court.
  9. 9. e-mail: joseph.whalen774@gmail.com Page 9 When challenging the initial (or latest) decision in a particular case, the appellant (respondent in Removal Proceedings) must make specific charges of error and explain their reasoning. They may offer additional evidence that supports a claim previously made but making an entirely new case is generally not permitted. To make an entirely new case generally demands the filing of a new application or petition. This is so because USCIS is supported by the fees it charges to adjudicate those applications and petitions. As an example, suppose that an I-140 is filed for someone who is claiming to be an alien of “extraordinary ability” (EB-1) but fails to prove their case. That same petition cannot be appealed on the basis of that person being an alien who is a “professional with a baccalaureate degree” (EB-3). The money has been spent adjudicating the original request so in order to make a new claim; one must file a new I-140. ETC…. (RFEs, NOIDs, and Certifications) There are other venues that vary in their frameworks and may allow greater freedom in making a case. The Request for Evidence (RFE) should spell out the deficiencies thus far identified with the particular case which prevents approval. A sufficient response should cure the deficiencies and allow approval. The Notice of Intent to Deny (NOID) is a bit more serious. It will also point out the majority of deficiencies identified but usually includes a problem that at least seems (in the adjudicator’s assessment) to be insurmountable. Very often, it appears that a prerequisite was not met and cannot be cured after the fact. This information can be helpful for a subsequent filing. Certifications are initial decisions that are sent along to AAO for review. This is a golden opportunity to put the best case forward to USCIS’ premier administrative appellate body, free of charge. I hope that this missive helps someone out there towards a better understanding of these various opportunities to present the best case possible. That’s my two-cents, for now joseph.whalen774@gmail.com

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