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Required mindset for performing qualitative along with or rather than quantitative analysis


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  • 1. Page 1 of 4 Required Mindset For Performing Qualitative Along With Or Rather Than Quantitative Analysis By Joseph P. Whalen (May 20, 2014) “The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the petitioner has submitted evidence relating to three of the criteria as required by the regulation does not necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 418201.” 2 Matters Pertaining to Evidence Quantity and quality of evidence are something of a dichotomy. While they can be symbiotic they might also have a truly inverse relationship. That is why we always hear things like the quote above as well something along the lines of “every case is unique” or “each case is decided based solely on the record of proceeding” or “every decision is decided on a case-by-case basis on the evidence of record”. A high quantity of low quality evidence is a sure loser while a low quantity of high quality evidence will stand a much better chance3. The easiest cases to prepare and present as well as adjudicate will be comprised of a high quantity of high quality evidence. One would hope that the last scenario described above applied to the majority of cases for applications and petitions across-the-board but it does not. At the very least, High Q2 should be presented and expected for classifications4 demanding exceptional or extraordinary ability; cases requesting labor certification exemption; including waivers “in the national interest”; or those claiming that their immigration to the United States will provide a “prospective benefit” to the United States; and my favorites, EB-5 immigrant petitions and related applications that purport to be a catalyst for regional or national economic growth. Those are some heady benefits categories and they are not given away haphazardly (I hope). That said, they do, in fact get granted on a regular basis and at a pretty steady rate. 1 See complete FR Notice as a word document at: 2 See page 3 of AAO O-1 Decision at: APR032014_01D8101.pdf 3 The option of a low quantity of low quality evidence is a waste of time to submit or discuss. 4 I am not even going to address naturalization applications or citizenship claims, just immigration and immigration-related subject matter.
  • 2. Page 2 of 4 Matters Pertaining to Analysis The preamble above spoke to aspects of evidence. Evidence is primarily tangible whether documentary or testimonial in nature. In proceedings where testimonial evidence is taken and considered, demeanor can play a much bigger role. This discussion is primarily concerned with the numerous faceless, paper-based adjudications as well as Motions and Appeals there from adjudicated by USCIS and AAO. Let’s pause and back- up a bit. I feel it is appropriate to start with a short refresher on the meaning of the terms “quantitative” and “qualitative” as they apply to analytical methodology and practical application. Quantitative analysis may consist of a methodology as simple as counting, adding, subtracting, multiplying, or dividing something. It could also involve convoluted statistical manipulation through the application of complex formulae and representations including charts, graphs, possibly even scattergrams or linear progressions and regressions. Remember that it is often possible to either accidentally or purposely skew data; cook the books; or simply make mathematical errors. It is also possible to have solid numbers but have not a single clue what any of them mean. Unexplained, poorly labeled, or incorrectly explained or presented numbers viewed in isolation, or devoid of, or taken out of, a proper context may actually be meaningless or counterproductive. Improper presentation of numbers can be a lie at worst or incompetence at the very least. I recommend neither end of this spectrum nor any gradation along the path from one end to the other. Disagreements about numbers, on the other hand, should not be about which number is correct, they should all be correct. Any disagreements should only encompass what the solid and reliable numbers mean. That simply boils down to a matter of interpretation and/or opinion. Qualitative analysis uses interpretive methodologies based on specific theoretical approaches. It is in this realm that opinions are either formed through deductive reasoning or supported through inductive reasoning. Confused yet? No? Yes? Whatever…keep reading, Sherlock! Like a good detective, deductive reasoning relies on seeking the truth, sifting through the clues (data), piecing together the puzzle then making reasonable inferences, and finally arriving at a conclusion. Some would describe this as an IRAC approach. Identify the ISSUE and the RULE; ANALYZE the facts gleaned from the evidence of record against that RULE to reach the proper CONCLUSION. That is deductive reasoning,
  • 3. Page 3 of 4 but there is another approach used sometimes. Some folks might try the opposite approach to deductive reasoning. The polar opposite is known as inductive reasoning. Inductive reasoning usually starts by drawing a conclusion then sifting and sorting through the clues (data) and selecting only those pieces of information that will support or bolster the argument or conclusion desired. Another descriptive term for this approach might be manipulation. Manipulation is not inherently bad if it leads to something good. The verb “manipulate” originally referred to one’s degree of manual dexterity but has grown to include more than that. Manipulation often may be perceived as a sinister action but it does not have to be so. Some of the meanings you’ll find in the dictionary5 include: “to use or change (numbers, information, etc.) in a skillful way or for a particular purpose” or “to manage or utilize skillfully”. Despite my seeming defense of the word “manipulate” it does often go sour if not handled with sufficient finesse. Skillful utilization of the plain facts via the K.I.S.S. principle, i.e., presenting a straight-forward explanation, is more helpful that trying to dazzle someone with bull***t. The truth can set you free if it is meant to be AND if you Keep It Simple, Stupid! So Many Choices! What Should I Do!? It may be necessary to skillfully and selectively “mix and match” from those elements and approaches introduced above. There is a particular Precedent Decision that is often studied, quoted and cited in connection with quantitative vs. qualitative analysis. This is so whether folks even realize or not that that is exactly what they are doing. I am of course referring to Matter of Sonegawa, 12 I&N Dec. 612 (Reg’l Comm’r 1967). Sonegawa is generally cited in cases where the “ability to pay” the proffered wage is the critical issue6. USCIS wants to know that the petitioner had that ability from the time of immigrant petition filing (the priority date) through the time of adjudication of the petition or perhaps even to the time of admission of the beneficiary. A careful study of the facts in Sonegawa and the way they were interpreted demonstrates the pitfalls of an inappropriately truncated analysis below which merely took a simplistic 5 SEE: 6 For more on this topic see: sample-of-aao-qualitative-analyses and january-2012
  • 4. Page 4 of 4 and overly narrow quantitative approach. When the facts were viewed as a part of the “big picture” or in the “totality of the circumstances” via a qualitative approach, the outcome was reversed. Numbers alone may at times be sufficient. That said, such times are few and far between. Manipulation As Skillful Utilization Quantitative analysis, in my opinion, it far too often used as a crutch by those with limited knowledge, skills, and abilities (KSAs) in the art of manipulation. Such unfortunates seem incapable of producing a qualitative analysis whether by deduction or induction. In order to produce a winning qualitative analysis with well-defined facts that allow for reasonable inferences that lead to proper conclusions, you will probably need to “think outside the box”. Unfortunately, some educational experiences or entire educational systems favor rote memorization and stifle creativity at an early age. That circumstance can basically cripple one’s ability to successfully manipulate data into a triumphant argument. I’d like to help, in at least my own small way, towards remedying that situation. I feel that just brining the issue to the forefront is a great start, but it won’t be the end. I shall continue to write on-topic articles and sometime dissect a case. Keep trying. That’s my two-cents, for now. Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 E-mail: web or DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training