Review of EB-2 AAO Decisions of January 2012
 

Review of EB-2 AAO Decisions of January 2012

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Review of EB-2 AAO Decisions of January 2012 Review of EB-2 AAO Decisions of January 2012 Document Transcript

  • EB-2 AAO Decisions Decided in January 2012 Posted and w/commentary by Joseph P. Whalen (August 23, 2012)While these linked non-precedential Administrative Decisions of USCIS’ AAOdate from January 2012, I happened across them on the agency’s website just thisweek (3rd week of August 2012). It is possible that they have been there for a whilebut I doubt that they have been there very long at all. The USCIS’ FOIA folks needtime (months) to redact them of personally identifiable information (PII) unless theeffected party or parties waived that requirement, or unless and until such decisionis designated as precedent. Any such designation as precedent can be a long,drawn-out, irritating, and generally cumbersome process. In other words, don’thold your breath while waiting for it or you will die trying for sure!All that aside, these cases involve the employment-based, second preferenceimmigrant visa classification petitions as decided by AAO either on appeal,motion, or certification. OK, now for a basic reminder of what we see representedhere. These links are for Administrative Decisions dealing with AAO Decision“category” B5 - Members of the Professions holding Advanced Degrees or Aliensof Exceptional Ability. The link indicates Date of Decision, the place that this onerepresent in the list for that date, i.e. SEQUENTIAL 1 No., in the particular“category” and the basic INA§.These decisions pertain to requests made on USCIS Form I-140, ImmigrantPetition for Alien Worker for (1) Members of the Professions Holding anAdvanced Degree or (2) Aliens of Exceptional Ability Pursuant to Section203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2). Certainof these decisions may address a concurrent request for a Waiver of the LaborCertification Process and/or an actual Job Offer IF the alien’s immigration isDeemed to be In The National Interest, such determination being in accordancewith the single Precedent Decision on the NIW topic, namely: Matter of New YorkState Dept. of Transportation, 22 I&N Dec. 215 (AAO2 1998) (NYSDOT).1 Gaps exist in the sequential decisions. This is how they are posted online. I am guessing that there is aMaster List at the agency and that some decisions are purposely and consciously held back for any ofnumerous reasons (could be in current litigation) (could have been reopened sua sponte due to a recentlegislative amendment or judicial or administrative precedent which controls the outcome). I don’t knowor care why this is. I am just making an observation that what we see is NOT all that gets done at AAO.2 The National Interest Waiver (NIW) Decision as originally published was attributed to the ActingAssociate Commissioner, Programs. At that time, it was within the authority of the AssociateCommissioner, Examinations to render such Precedents but that authority was administered through theAdministrative Appeals Unit (AAU) as per outdated regulations. AAU was renamed AdministrativeAppeals Office (AAO) in January 1994. Page 1 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) NSC Denied due to lack of ATP 4. This decision 3Jan032012_01B5203.pdf explains the adjudication of cases invoking a Successor in Interest claim as per Matter of Dial AutoAPPEAL DISMISSED Repair Shop, Inc., 19 I&N Dec. 481 (Commr 1986) ("Matter of Dial Auto") a binding, legacy Immigration and Naturalization Service (INS) decision that was designated as a precedent by the Commissioner in 1986. “The merger or consolidation of a business organization into another will give rise to a successor- in-interest relationship because the assets and obligations are transferred by operation of law. However, a mere transfer of assets, even one that takes up a predecessors business activities, does not necessarily create a successor-in-interest. See Holland v. Williams Mountain Coal Co., 496 F.3d 670, 672 (D.C. Cir. 2007). An asset transaction occurs when one business organization sells property - such as real estate, machinery, or intellectual property - to another business organization. The purchase of assets from a predecessor will only result in a successor-in-interest relationship if the parties agree to the transfer and assumption of the essential rights and obligations of the predecessor necessary to carry on the business.” At p.4 This decision spells out a three-part “test” for successor-in-interest claims or scenarios, at least as it pertains to an employer sponsored employment-based immigrant visa petition.3 NSC = Nebraska Service Center. There are three more Service Centers: CSC for California, TSC forTexas and VSC for Vermont. USCIS has well over 100 offices worldwide.4 ATP means that the issue in this case is whether the petitioner has the ability to pay the proffered wageas of the priority date and continuing until the beneficiary obtains lawful permanent residence. Page 2 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) “[A] petitioner may establish a valid successor relationship for immigration purposes if it satisfies three conditions. First, the petitioning successor must fully describe and document the transaction transferring ownership of all, or a relevant part of, the beneficiarys predecessor employer. Second, the petitioning successor must demonstrate that the job opportunity is the same as originally offered on the labor certification. Third, the petitioning successor must prove by a preponderance of the evidence that it is eligible for the immigrant visa in all respects.” At p. 5 I find it noteworthy to recall Anderson v Holder, No. 07-74042 (9th Cir. March 12, 2012)5, where the Ninth Circuit noted that “[t]he government’s position is that the word “legitimation” should be read broadly when a broad reading results in the denial of citizenship, and narrowly when a narrow reading results in the denial of citizenship. ...” The INS “Culture” of “NO!” lives on! Are CSC and AAO doing the same with the successor-in-interest concept? In certain situations, USCIS seeks to establish the interest and in others, it seeks to refute it. To what end?5 See: http://www.ca9.uscourts.gov/datastore/opinions/2012/03/12/07-74042.pdf Page 3 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) CSC adjudicators seem to try to find the interest in the EB-5 context 6 in order to deny job creation claims and projections but they and their brethren across the Service Centers vehemently seek to refuse to find such an interest for I-140 petitioners in order to deny the I-140! The EB-5 context demands failure to fulfill the requirements of the three-part “test” in order to at least remain potentially approvable, as applied to the very case-specific facts as sufficiently proven. It seems like a waste of time to even try to go down that road.Jan052012_01B5203.pdf Although found qualified for the underlying EB-2 classification as a member of the professions holdingAPPEAL DISMISSED an advanced degree, TSC denied the NIW request. The basics on the NIW are summed up in the f0ollowing passage and will not be repeated again in this compilation. “Matter of New York State Dept. of Transportation, 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, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope.6 I must admit that certain unscrupulous bottom-feeders will always seek to “game the system”. I haveencountered some folks seeking to pretend to go out of business so that a friend or relative can resurrectthat exact same business as an EB-5 investment vehicle. Those fraudsters would merely “re-hire” theexact same employees and try to pass it off as a qualifying EB-5 venture. That said, there is no reason tobelieve that any mere “surface similarities” (fraud indicators) are always 100% without a doubt, actuallyfraud. It is why EB-5 is so extremely case-specific and deeply fact-dependent! Page 4 of 15
  • LINK and REMARKS andOUTCOME/RESULT EXCERPTS (if any) Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be established 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 inclusion of the term "prospective" is used here 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 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. ” At p. 3 Upon checking the available records, AAO found some glaring problems. They issued the self-petitioner a “notice” presumably informing him of “derogatory information” as required by 8 CFR § 103.2 (b)(16)(i) Page 5 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) for which he was afforded 15 days to respond however there was no response. That “Notice” read, in part: “You based your application for a national interest waiver on your achievements as a researcher, and on the premise that your future scientific research would benefit the United States. After only a matter of months, however, you first ceased to perform research and then apparently left the scientific field altogether in order to attend law school. The AAO, therefore, intends to dismiss your appeal, because your career trajectory appears to be very different from the research career that formed the basis of your waiver application. If you intend to claim that you will return to a research career, please submit thorough and credible documentary evidence to support such a claim. Witness letters are secondary evidence, and by themselves cannot suffice in this regard. The AAO will weigh any explanation you offer against the documented proof that you left your postdoctoral position prematurely, in order to pursue part-time employment and, later, graduate-level education that did not involve scientific research.” While the folks at DHS, including USCIS and AAO, are not “all knowing” they do not have their heads buried in the sand either!Jan052012_02B5203.pdf The director at NSC found that the beneficiary qualifies for classification as a member of theAPPEAL DISMISSED professions with the equivalent of an advanced degree, as an engineer, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest... Page 6 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) On February 11, 2010, the director instructed the petitioner to "submit further evidence to corroborate claims that the national interest would be adversely affected if a labor certification were required" and "to establish that the beneficiary has a past record of specific prior achievement that justifies projections of future benefit to the national interest." The director specified that the petitioner "must demonstrate the beneficiarys influence on his field of employment as a whole." The response was deemed insufficient. Please read the decision for examples of what substandard affidavits and/or witness letters look like.Jan052012_03B5203.pdf NSC found the beneficiary qualified as a design engineer but failed to qualify for the NIW.APPEAL DISMISSED Next is a very notable improvement in AAO basic adjudication philosophy, technique, and processing! Not long ago, AAO would have remanded the case to address the pointless technicality and delayed the final decision by several more months. “The USCIS regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the exemption must submit Form ET A-750B, Statement of Qualifications of Alien (or corresponding sections of ETA Form 9089), in duplicate. The record does not contain this required document, and therefore the petitioner has not properly applied for the national interest waiver. The director, however, did not raise this issue. The AAO will, therefore, review the matter on the merits rather than leave it at a finding that the petitioner did not properly apply for the waiver.” At pp. 2-3 Page 7 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) Not having seen the actual evidence, this next remark is only a guess. It looks like this individual just wants to cut the wait time for visa availability and his or her subsequent adjustment of status. In fact, it may be too generous to have found this individual qualified as an EB-2 engineer rather than as an EB-3 “code monkey”.Jan052012_04B5203.pdf NIW granted by AAO where TSC had declined to do so.CERTIFIED DENIALWITHDRAWN, A notable footnote (emphasis added):PETITION APPROVED FN1 In the same notice, the director also instructed the petitioner to submit evidence of exceptional ability in the sciences as described in the regulation at 8 C.F.R. § 204.5(k)(3)(ii). Because the director subsequently acknowledged that the petitioner readily qualifies for classification as a member of the professions holding an advanced degree, discussion of exceptional ability is moot. Both classifications full under section 203(b)(2) of the Act. Detailed analysis of the exceptional ability regulations would not affect the ultimate outcome of the present decision. When there is no requirement to say anything it is best not to. The easiest way to keep from putting your foot in your mouth is to keep it shut unless circumstances dictate otherwise. It is strongly advised that you read this decision and especially focus on the discussion on pages 7 & 8.Jan062012_01B5203.pdf NSC belatedly realized that the I-140 overstated the job applicant’s required educational and experienceINITIALLY when compared closely to the approved laborAPPROVED, THEN certification form. They almost got away with a baitREVOKED, APPEAL and switch maneuver in this case.DISMISSED Page 8 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any)Jan062012_03B5203.pdf This time it was the TSC director that determined that the Form ETA 750 failed to demonstrate that the jobAPPEAL DISMISSED requires a professional holding an advanced degree and, therefore, the beneficiary cannot be found qualified for classification as a member of the professions holding an advanced degree. The director denied the petition accordingly. The wording on the DOL form is just like that in the case directly above. Were they Venue Shopping the Service Centers?Jan062012_04B5203.pdf This appears to be a duplicate posting the same as: Jan052012_04B5203.pdf, above. The only thingCERTIFIED DENIAL different is the date in the LINK. This one ,in the listWITHDRAWN, (dated the 6th) is wrong.PETITION APPROVEDJan062012_06B5203.pdf Beneficiary had already filed to adjust status to LPR shortly after this I-140 was filed and has actuallyDISMISSED AS MOOT adjusted already. This appeal was pointless. If I were the petitioning employer, I would be mad at this person for making me waste time and money!Jan092012_01B5203.pdf TSC denied due to ATP issue.APPEAL DISMISSED This case contains a very lengthy footnote discussing the history of “substitutions”, rulemakings, judicial invalidation, an MOU between DOL and USCIS and the current DOL rule regarding “no substitutions” of beneficiaries on labor certifications.Jan092012_03B5203.pdf NSC denied the NIW but found the beneficiary to be qualified as a mechanical engineer, B-2 advancedAPPEAL DISMISSED degree professional. Page 9 of 15
  • LINK and REMARKS andOUTCOME/RESULT EXCERPTS (if any) It almost seemed that this one might have been better presented as for an EB-2 NIW Entrepreneur. Perhaps in the future someone will think to try it that way. Next, is a notable blurb with familiar quotes and case citations: “The opinions of experts in the field are not without weight and have been considered above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an aliens eligibility for the benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as to whether they support the aliens eligibility. See id. at 795. USCIS may even give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg’l Commr. 1972». The Board of Immigration Appeals held that "expert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to fact. " Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008). Here, the witnesses have made several claims of fact, such as the assertion that the petitioners company has a 55% market share and that his gas stations have relieved a shortage of such facilities. The witnesses have ventured beyond opinion into the realm of testable claims of fact, and it is therefore significant that the petitioner has submitted no documentation to corroborate those claims.” At pp. 6-7 Page 10 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any)Jan102012_01B5203.pdf NSC denied due to lack of a valid labor certification. No substitutions of beneficiaries has been permittedAPPEAL REJECTED since DOLs regulation became effective July 16, 2007. This particular reason for denial is not appealable to AAO. This case was dismissed for lack of subject matter jurisdiction but they refer to it as a “rejection”.Jan102012_03B5203.pdf Review of U.S. Citizenship and Immigration Services (USCIS) records indicates that, subsequent to filingDISMISSED AS MOOT the instant petition, the alien filed a Form 1-485 Application to Adjust Status, receipt number SRC 09 032 52549, which was approved on December 22, 2008. Because the alien has adjusted to lawful permanent resident status, further pursuit of the matter at hand is moot.Jan102012_04B5203.pdf A prior appeal was dismissed. The instant Motion to Reopen and Reconsider was granted and theMTRR GRANTED, underlying petition approved. The beneficiary, anPETITION APPROVED adjunct assistant professor of international politics, sought the NIW, was initially denied but in the wake of the death of North Korean’s Kim Jong-il and the spotlight shining on him, the earlier denial and dismissal were proven incorrect. “On motion, the petitioner submits materials that show more clearly that he is not merely a self-appointed pundit who puts forth his unsolicited views in letters to the editor, blog posts or the comments section of news stories. Rather, major, respected news outlets actively seek out his opinions and commentary, indicating that the highest sources take the petitioners views seriously on the important subjects he discusses. Counsel, on motion, asserts that the petitioner and his witnesses were previously unsure of the caliber of evidence required to show eligibility for the national Page 11 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) interest waiver. On motion, the petitioner seeks to remedy the deficiency by submitting more specific witness letters.”Jan102012_05B5203.pdf NSC found this individual qualified as a member of the professions holding an advanced degree, as anAPPEAL DIMISSED, environmental scientist. However, the request for aMTR GRANTED but NIW was denied as purely speculative andPRIOR DENIAL AND unsupported assertions.DISMISSAL STAND,RE-AFFIRMED “The petitioner essentially argues that the intended book must be important, because otherwise its contributors would not think it worth the effort. The AAO notes that, while the petitioner has submitted a list of "contributing authors," the record contains no first-hand evidence that those authors have in fact committed to the project. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22l&N Dec. 158, 165 (Commr 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl Commr 1972)). The very act of editing a book (or planning to do so in the future) does not automatically earn the editor a national interest waiver. The burden is on the petitioner to establish that his particular book is especially noteworthy. He cannot meet this burden simply by describing the project and declaring that any project fitting that description must be important. The AAO rejects the claim that the books importance is self-evident, even before its completion and publication.” At p. 4Jan102012_06B5203.pdf No specific statement as to any alleged erroneous conclusion of law or statement of fact and no briefSUMMARILY submitted even after nearly one full year.DISMISSED Page 12 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any)Jan102012_07B5203.pdf NSC denied due to ATP issue. The unsupported vague appeal stated not reason for it and no brief wasSUMMARILY submitted had been initially promised.DISMISSEDJan102012_08B5203.pdf TSC denied due to ATP issue. The unsupported vague appeal stated not reason for it and no brief wasSUMMARILY submitted had been initially promised.DISMISSEDJan112012_01B5203.pdf The beneficiary did not meet the minimum requirements as listed on the ETA Form 9089,APPEAL DISMISSED Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). This decision discusses the fact that while an advanced degree may be supplanted by experience there is no corollary for the lower baccalaureate degree.Jan112012_02B5203.pdf The position described on the labor certification fails to qualify for the classification sought via this form I-APPEAL DISMISSED 140. No amount of whining will change that fact. The fee has been spent for the adjudication as requested. There can be no free second adjudication for a different classification and the filing date may not be transferred. “The petitioner requested classification as a member of the professions holding an advanced degree and attempted to re-characterize the classification requested on appeal. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to United States Citizenship and Immigration Services requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Commr 1988). Page 13 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) Regardless, although counsel argues on appeal that the petitioner was wrongfully advised by former counsel, the petitioners representatives signature which was signed under penalty of perjury under the laws of the United States of America appears as the person preparing the form, not former counsel. Former counsel appears to have signed the ETA Form 9089, but there is no evidence that former counsel prepared and filed the Form 1-140. Finally, even if it could be established that prior counsel was ineffective, it is unclear what relief could be granted as the petitioner may not change classifications after the denial. ” At p. 3 [Emphasis Added.]Jan122012_01B5203.pdf “The AAO issued a Notice of Intent to Deny and Notice of Derogatory Information (NOID/NDI) onAPPEAL DISMISSED October 19, 201 I relevant to the petitioners ability to pay the proffered wage within the context of filings for multiple other immigrant and nonimmigrant petitions. l The AAO additionally noted other derogatory and inconsistent information pertinent to this proceeding:” This shady character has been trekking cross- country opening and closing under a variety of fake business names after having been debarred by DOL for the shenanigans it continues to try through multiple fraudulent filings with USCIS!Jan122012_03B5203.pdf The TSC director found that the petitioner qualifies for classification as a member of the professions holdingAPPEAL DISMISSED 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. Again, AAO is moving in the right direction.... “The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(4)(ii) Page 14 of 15
  • LINK and REMARKS and OUTCOME/RESULT EXCERPTS (if any) requires that a petitioner seeking to apply for the exemption must submit Form ET A-750B, Statement of Qualifications of Alien (or corresponding sections of ETA Form 9089), in duplicate. The record does not contain this required document, and therefore the petitioner has not properly applied for the national interest waiver. The director, however, did not raise this issue. The AAO will, therefore, review the matter on the merits rather than leave it at a finding that the petitioner did not properly apply for the waiver.” At pp. 2-3Jan172012_05B5203.pdf The appeal is dismissed based on the aliens adjustment to lawful permanent resident status.DISMISSED AS MOOTJan172012_07B5203.pdf “The record of proceeding contains a properly executed Form G-28, Notice of Entry ofREJECTED AS Appearance as Attorney or AccreditedIMPROPERLY FILED Representative, for the beneficiarys representative. United States Citizenship and Immigration Services regulations specifically prohibit a beneficiary of a visa petition, or a representative acting on a beneficiarys behalf, from filing an appeal. 8 C.P.R. § 103.3(a)(1)(iii)(B). No evidence suggests that the petitioner consented to the filing of the appeal. As the appeal was not properly filed, and it is unclear whether or not the petitioner consented to having an appeal filed on its behalf, it will be rejected. 8 C.F.R. § 103.3(a)(2)(v)(A)(1).” At p. 2Jan192012_01B5203.pdf The TSC director determined that the petitioner failed to demonstrate that the beneficiary satisfied theAPPEAL DISMISSED minimum level of education stated on the labor certification. This 6-page decision is worth reading. Page 15 of 15