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Critically Important Role of Proper Context for INA Benefits Purposes

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UPDATED and EXPANDED after 269 views …

UPDATED and EXPANDED after 269 views
Added a footnote after 315 views. Corrected a grammatical error (one word difference) on April 16th.

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  • 1. The Critically Important Role of Proper Context for INA Benefits Purposes By Joseph P. Whalen (April 10, 2012)I have written before on a variety of topics and issues relating to requests forbenefits and entitlements under the Immigration and Nationality Act (INA). Somebenefits are bestowed as a matter of “administrative grace” through a favorableexercise of discretion while other benefits are either absolute or qualified“entitlements”. Some folks either don’t know that there is a difference or can’t tellwhich is which. Additionally, there are certain preliminary processes and/orthreshold issues that may be required in advance of requesting an actual, practical,and tangible “benefit”.The prime example of something that folks get confused about is the visaclassification and its associated petition. The mere “classification” in a statutorilyprescribed category is an entitlement without a guaranteed tangible benefit.Obtaining official confirmation as to one’s qualifications for a particular visa“classification” is only a preliminary step. The visa petition addresses underlyingeligibility requirements such as substantiating a pre-existing relationship, oranswering a threshold question. Is Juan legally married to Susan? Is Jean Lucreally the legitimated child of Pierre? Is Jie really Quan’s mother? Did Olusegunand Emeka have a bona fide parent-child relationship during the critical period inquestion? Is that adoption legal, both under the INA, and in the foreign country orstate? Did the natural parent marry the subsequent non-parent spouse before thechild reached 18 years of age (and while unmarried) in order to create a valid step-relationship? Is the marriage bona fide? Was the marriage “entered into in goodfaith”? Was the job offer viable or bogus? Did the employer have, upon filing anddoes the employer continue to have, the “ability to pay”? Was the laborcertification application or visa petition “approvable when filed”? Was thebeneficiary “eligible at time of filing”? Is the “time of adjudication” the criticaltime to show proof to the satisfaction of the deciding official? Has thebeneficiary/applicant/self-petitioner lost eligibility since the prior preliminary orinterim determination, via a dispositive material change: a child aged-out ormarried, petitioning spouse divorced the beneficiary, or beneficiary becameinadmissible in some way? Has an earlier fraud or misrepresentation been detectedthat negates a prior favorable determination as to eligibility and/or qualifications? Page 1 of 7
  • 2. Most, if not all, of the above issues, questions, and concerns are well-known (atleast I hope they are). I have seen a particular recurrent flaw in a variety ofpetitions and applications. Confusion of and about what the pertinent issues are,within the instant petition or application adjudication process, is often causedunintentionally due to approaching the preparation of a case and its evidence insupport thereof, within the wrong context. In the simplest of terms, sometimesfolks don’t actually have any idea what they might really qualify for and simplyfile in the hopes that the agency will figure it out for them. That approach mightactually work in only one type of case and that is the filing of USCIS Form N-600,Application for Certificate of Citizenship.In citizenship claim cases, applicants may have a vague idea that they meet therequirements for derivative citizenship but rely on the adjudicator to sort throughthe evidence, much of which may be in the applicant’s permanent A-file andthereby more accessible to the adjudicator than the applicant; and sort through themaze of changes in the law that have taken place over more than a century. A casein point, as to the availability of evidence, is the child born in a refugee camp whohas no birth certificate and therefore must rely on the paperwork generated duringrefugee processing by United Nations, State Department, or INS/USCIS Officers.The necessary evidence most likely only exists inside his or her A-file.That’s enough ranting about evidence, now back to context. When one starts with afalse premise or approaches case preparation within the wrong context, they willend up selecting and submitting evidence that is irrelevant to the actual criticalissues and questions. Often, such a submission might superbly answer all of thosetotally irrelevant and unasked questions. If one is unclear as to the proper contextthen how can they anticipate the appropriate questions that the evidence mustanswer? The evidence might fully support and address each and every one of thoseincorrect or irrelevant issues and concerns but lead to denial because of the realeligibility requirements that went unaddressed and, questions that wentunanswered.Even worse is when futile Motions and Appeals are presented that refuse toacknowledge, address, and answer the identified issues relied upon by theadjudicator and the stated grounds for denial. Far too often, the inept applicant, Page 2 of 7
  • 3. petitioner, or practitioner will waste their efforts in arguing about what the coreissues really are. In those rare instances when the agency has the underlying issueswrong, that is when we get judicial intervention in an area of law. However, suchoccurrences are far more rare than the inept applicant, petitioner, or practitionerseems to realize.I have encountered individuals who prepare cases exceptionally well and otherswho fall short to varying degrees. That’s just the reality of the world in which welive. You can’t deny it and shouldn’t ignore it. I urge you to combat it. “It” in theprevious sentence refers to inadequacy through minor oversight, short sightedness,or perhaps gross incompetence.Assuming arguendo that you have figured out whether you are: (1) seeking to prove prima facie eligibility for a benefit that rests on a favorable exercise of discretion, or (2) seeking to prove by the appropriate evidentiary standard, an absolute entitlement to a statutory right, privilege or status (such as citizenship or issuance of a document), or (3) a qualified entitlement from which one is not statutorily barred:How do you assemble the evidence and present the case? Well, you must presentthe case within the proper context.Context is most crucial at the beginning and again at the end. In the beginning,one must set the stage and prove threshold issues. At the end, one mustsuccessfully leap the final hurdle or cross the finish-line. Are you trying to prove afamilial relationship, the proper classification for the employment position, the pre-existing employment relationship (L non-immigrant or E1-3/E1-C immigrant), thebeneficiary’s qualifications for said position, or the employer’s ability to pay?Indicate up front what you are trying to prove for this particular petition orapplication, and neatly tie it all together at the end with a succinct well-supportedconclusion.In between, you need to guide the adjudicator through your evidence pointing outand playing-up all of the highlights while acknowledging yet minimizing or down- Page 3 of 7
  • 4. playing (i.e., explain away) any less than favorable information. Yes, there wasone petty theft some years ago but it meets both of the exceptions at INA § 212(a)(2)(A)(ii)(I) and (II)! [The applicant was under 18, served 30 days, maximumpenalty was only 90 days, and it was 5 ½ years ago.] Here are the documents: anOfficial Final Court Disposition, a copy of the report issued upon release showinggood behavior, a letter from the Probation Officer stating full compliance withcounseling, no probation violations, and all fees and fines paid. Lastly, here is acopy of the actual statute of conviction for reference with citation to the applicableINA section and controlling precedent(s).EXAMPLE: Context is even more important to certain classifications. The EB-2National Interest Waiver (NIW) has multiple contexts to consider. First, there isthe underlying EB-2 variety to consider. Is the beneficiary/self-petitioner a“professional” or an “alien of exceptional ability”? In which of the plethora ofprofessions recognized by the Department of Labor does this person holdqualifications? In which of the three available contexts does the “exceptionalability” lie? There are, as a mere starting point, a minimum of four broad contexts,which can easily grow exponentially.THRESHOLD QUESTIONS: Does this person qualify because of theirexceptional ability in the sciences, arts, or business? Here you have three broadcontexts to choose from in which to build your case and arguments. As for theprofessional1, there are far too many possibilities to use the underlyingclassification of the professions as an example of a context here. [My essays areoften too long even when I try to be succinct and I am not attempting that here.]We now have three remaining broad categories and each of those offers a widevariety of sub-categories or sub-disciplines. I choose science as the primaryexample for this discussion.SCIENCE: Are you dealing with a physical or natural scientist, or a socialscientist? Is (s)he a practical or theoretical scientist? Are you dealing with aphysicist, a chemist, a biologist? Perhaps you have a nanoscientist who hasdeveloped a breakthrough in vision correcting eye implants. Is (s)he instead, anoncologist, an anthropologist, mathematician, sociologist, statistician, economist,1 For AAO’s latest posted decision on what qualifies, please see: Aug242011_02B5203.pdf Page 4 of 7
  • 5. paleontologist, or just maybe a mechanical engineer that designs and modifiesfission reactor components? There is a wide range of possibilities presented andthat’s not even the tip of this iceberg.SET THE STAGE: You probably need to include some background material inorder to allow the adjudicator to see the beneficiary’s “exceptional ability” in the“big picture” within his or her particular area of specialization. The beneficiarymay be a big fish in a small, overlooked, misunderstood, extremely new (i.e.,cutting edge), or obscure pond. However since the alien is claiming that that pondis an important one, help the adjudicator see that fact via submission of pertinentcorroborating evidence. Educate your audience on the proper context in which tomeaningfully consider and properly weigh the evidence presented.INTERIM STEP: Every EB-2 alien (exceptional or professional) must presentevidence that (s)he will “substantially benefit prospectively the national interest”in a broad and general way. This universal requirement has been synthesized tomean evidence of a substantial prospective benefit. This basic requirement neednot be feared as an overwhelming obstacle or as too great to surmount. As anexample, almost any medical research is likely to be beneficial and since the alienis coming to continue and build upon a prior body of work there is little objectionto granting the benefit-of-the-doubt provided that one can demonstrate that thealiens past record justifies projections of future benefit. This involves a finding-of-fact by the adjudicator similar to an IJ finding a likelihood of future harm if onewere removed to their home country in order to justify granting relief fromremoval. However, since the USCIS Service Center Adjudicator is making adetermination on a paper record, AAO can make a new finding-of-fact in its denovo review based on the same or a supplemented record on appeal or certification.The BIA does not have the same latitude over an IJ’s findings-of-fact due to thedissimilar natures of the two underlying proceedings, which may involve oraltestimony and a chance for the IJ to observe demeanor through personalinteraction.NEXT STEP: Now you must determine the proper context for the NIW claim.The NIW must go beyond the prima facie showing made about the past record,which was already demonstrated in order to obtain the underlying EB-2 Page 5 of 7
  • 6. classification. The statute provides a basis as to the available contexts for use inbuilding the case and arguments. In order to qualify for the EB-2 visa, the alienmust generally convince USCIS that (s)he will substantially benefit prospectivelythe national economy, cultural or educational interests, or welfare of the UnitedStates, and whose services in the sciences, arts, professions, or business are soughtby an employer in the United States. However when the adjudicator deems it to bein the national interest, he or she may, on behalf of USCIS, waive the requirementthat an aliens services actually be sought by an employer in the United States.Thus, the particular requirements that are being waived in the national interest are: (1) an actual job offer and, (2) the hassle of the permanent labor certification process.NIW CONTEXTS: After building the case for classification within the particularunderlying context, we now shift to a new context for this additional requestedbenefit of a “waiver”.Here are the statutorily available choices within which to prove that the alien’sadmission as an immigrant would be In The National Interest: (1) National Economy, (2) National Cultural Interests, (3) National Educational Interests, or (4) National Welfare. [For this final context, I look to the U.S. Constitution’s Preamble which states that “in order to form a more perfect Union”, one of the things that “We the People” will strive to do is: “promote the general Welfare”.]AAO issued a single Precedent Decision, which serves as the principle guide forthe adjudication of the request for the NIW. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998) (NYSDOT), 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. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree Page 6 of 7
  • 7. than would an available U.S. worker having the same minimum qualifications.2Since I have already written extensively and previously published on the topic ofthe National Interest Waiver, as well as entitlements, administrative grace,weighing of evidence, sound judgment, and fairness. I will not repeat all of thathere. Instead, I leave you with some links to other works. A Recent Successful Request for an L1-A Intra-company Transferee as a Manager or Executive http://www.ilw.com/articles/2012,0207-Whalen.shtm Regarding National Interest Waivers http://www.ilw.com/articles/2012,0227-whalen.shtm A Recent Successful Request for an Outstanding Professor or Researcher http://www.ilw.com/articles/2012,0110-Whalen.shtm Its Hard to Get Someone With Tunnel-Vision to See the Big Picture http://www.ilw.com/articles/2012,0319-whalen.shtm Entitlement vs. Discretionary Relief or "Administrative Grace" http://www.ilw.com/articles/2012,0202-Whalen.shtm An Open Letter to USCIS Offering A Suggestion For A Generally Applicable USCIS Policy of Fairness http://www.ilw.com/articles/2011,1019-whalen.shtm http://www.slideshare.net/BigJoe5/amicus-brief-to-uscis-on-kazarian- final-merits-determination-aug-20-2011-jpw-redacted http://www.slideshare.net/BigJoe5/critique-of-vov-21-2011-niw-aao- sustained-appeal-12152011 “Eligibility at the time of filing” Misapplication of Very Specific I&N Decision Holdings and Principles to Too Many Circumstances http://www.ilw.com/articles/2011,0301-whalen.shtm2 See: AAO Decision dated August 12, 2010 Page 7 of 7

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