Amicus Brief on a Clearly Erroneous Misapplication of Law and PrecedentsRE: AAO Dismissal of an Appeal of an N-470 Denied ...
DISCUSSION: The Form N-470, Application to Preserve Residence forNaturalization Purposes (N-470 Application) was denied by...
conclusion of law or statement of fact for the appeal. In fact, the applicantacknowledges that she applied prior to the en...
The majority of applicants for this protection may apply prior to or aftercommencing employment with the qualified employe...
touch with society as it exists at time of entry into that society as a citizen. That hasbeen the underlying concern of th...
employment commences, but must be filed before the applicant has        been absent from the United States for a continuou...
Various cases and lines of cases stand for certain concepts in certain specificcontexts. Matters of: Katigbak (eligibiliy ...
(2) Where a beneficiary seeks to qualify for "L" classification on the basis of      specialized knowledge, that knowledge...
Under INA § 316(b)(2), the statute requires that “such person proves to thesatisfaction of the Attorney General [now USCIS...
beneficiaries occurred after the visa petitions were filed). By contrast, there      was no bar to the approval of the ins...
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Amicus brief on N 470 8-22-2011 jpw

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Amicus brief on N 470 8-22-2011 jpw

  1. 1. Amicus Brief on a Clearly Erroneous Misapplication of Law and PrecedentsRE: AAO Dismissal of an Appeal of an N-470 Denied by the District Director atNewark, NJ (NEW)This brief shall first repeat the AAO Decision in question then cite and discuss theapplicable statute and regulations that apply. Then the misapplied Precedents willbe discussed and include the Precedent that was overlooked. The AAO Decision Dated: JUL 2 7 2010. Found at: Jul272010_02E1316.pdfAPPLICATION: Application to Preserve Residence for Naturalization Purposes under Section 3 16(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b)ON BEHALF OF APPLICANT: SELF-REPRESENTEDINSTRUCTIONS:Enclosed please find the decision of the Administrative Appeals Office in yourcase. All of the documents related to this matter have been returned to the officethat originally decided your case. Please be advised that any further inquiry thatyou might have concerning your case must be made to that office.If you believe the law was inappropriately applied by us in reaching our decision,or you have additional information that you wish to have considered, you may filea motion to reconsider or a motion to reopen.The specific requirements for filing such a request can be found at 8 C.F.R. §103.5. All motions must be submitted to the office that originally decided yourcase by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585.Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion mustbe filed within 30 days of the decision that the motion seeks to reconsider orreopen.Perry RhewChief, Administrative Appeals OfficeAmicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 1
  2. 2. DISCUSSION: The Form N-470, Application to Preserve Residence forNaturalization Purposes (N-470 Application) was denied by the District Director,Newark, New Jersey. The matter is now before the Administrative Appeals Office(AAO) on appeal. The appeal will be summarily dismissed, and the N-470application will be denied.The applicant seeks to preserve her residence for naturalization purposes pursuantto section 316(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1427(b). The district director determined that the applicant was not eligible forconsideration under section 316(b) of the Act because she failed to demonstratethat she was physically present in the United States for a continuous period of atleast one year after being lawfully admitted for permanent residence in the UnitedStates. In the present matter, the applicant was lawfully admitted for permanentresidence in the United States on March 24,2004, and subsequently filed thecurrent petition on January 20, 2005, two months prior to the one year mark. Theapplication was denied accordingly.On April 21, 2005, the petitioner submitted the Form I-290B to appeal the denialof the underlying petition. The petitioner marked the box at part two of the Form I-290B to indicate that no supplemental brief and/or additional evidence will besubmitted. Thus, the AAO deems the record complete as currently constituted.An officer to whom an appeal is taken shall summarily dismiss any appeal whenthe party concerned fails to identify specifically any erroneous conclusion of lawor statement of fact for the appeal. 8 C.F.R. § 103.3(a)(l)(v).On the Form I-290B, the petitioner states the following: My application to Preserve Residence for Naturalization has been denied as the application was submitted before the uninterrupted period of one year after 1awful admission for permanent residence. In this respect I want to state that my intended date of departure (27th Apr. 05) as mentioned in application is about a month after one year of uninterrupted stay in USA. I applied earlier to allow time for decision. As my stay is now over a year, I humbly request to accept this appeal to Preserve Residence for Naturalization.In regard to the directors conclusions that the applicant failed to submit sufficientevidence to show that the she has been present in the United States for anuninterrupted time of one year, the applicant fails to identify any erroneousAmicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 2
  3. 3. conclusion of law or statement of fact for the appeal. In fact, the applicantacknowledges that she applied prior to the end of the one year period of time in theUnited States. As no additional evidence is presented on appeal to overcome thedecision of the director, the appeal will be summarily dismissed in accordance with8 C.F.R. § 103.3(a)(l)(v).The applicant requests on appeal to approve the application since by the time theappeal was filed, one year of uninterrupted time in the United States had passed.The applicant must establish eligibility at the time of filing the application. Anapplication may not be approved at a future date after the applicant becomeseligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248(Reg. Comm. 1978).The burden of proof in these proceedings rests solely with the petitioner. Section291 of the Act, 8 U.S.C. § 1361. The applicant has not sustained that burden.ORDER: The appeal is summarily dismissed. The application is denied.Background on INA § 316(b)This form (N-470) is used by an LPR to apply for protection against potentialnegative consequences to their prospective naturalization eligibility in a futureform N-400 due solely to an extended absence from the United States for a coveredpurpose and/or activity.INA § 316(b) includes several subclasses of eligible LPRs based on specificemployment. These individuals have a prerequisite to the attainment of theprotection under INA § 316(b). These individuals must demonstrate at least onecontinuous year of physical presence inside the United States as an LPR(greencard holder) prior to departing abroad to commence the qualifiedemployment for a period of one year or more.These individuals have a limited window of opportunity to apply for the protectionunder INA § 316(b). It is mandated in the statute that the eligible alien LPR putUSCIS on notice of their intent to utilize this benefit at a later date, in a future N-400. Historically, many N-470 applications have languished until the N-400 hasbeen filed and then approved nunc pro tunc during naturalization proceedings.Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 3
  4. 4. The majority of applicants for this protection may apply prior to or aftercommencing employment with the qualified employer. All applicants under INA §316(b) MUST apply prior to being absent from the U.S. for one full year. Thealien is NOT precluded from filing early. In fact, it makes better sense toencourage aliens to file early so that that alien who is truly NOT eligible and/orwho clearly misunderstands the actual requirements can be informed of theirmisunderstanding before they endanger not only their naturalization eligibility butalso their LPR status by remaining abroad for a prolonged period withoutprotection. In addition, sometimes they may not understand that a re-entry permitis still required even if an N-470 is approved. This would be a concept heretoforecompletely foreign to AAO, it is called “good customer service”.The employment covered by INA § 316(b) is that of a qualified LPR who:(1) is employed by or under contract with--  the Government of the United States [exclusive of U.S. Military Service Members] or  an American institution of research recognized as such by [USCIS]; or(2) is employed by an American firm or corporation engaged in whole or in part inthe development of foreign trade and commerce of the United States; or(3) is employed by a subsidiary of an American firm or corporation engaged inwhole or in part in the development of foreign trade and commerce of the UnitedStates more than 50 per centum of whose stock is owned by an American firm orcorporation; or(4) is to be employed by a public international organization of which the UnitedStates is a member by treaty or statute and by which the alien was not employeduntil after being lawfully admitted for permanent residence.NOTE: This last LPR and only this last LPR is prohibited from being employed bysuch organization PRIOR to being an LPR. The most likely reason for this is thatsuch PRIOR employee is HIGHLY LIKELY already immediately eligible fornaturalization under INA § 319(c) as an employee of a bona fide non-profitorganization recognized by the U.S. government which is engaged in disseminatinginformation in the interest of the United States. Double-dipping into these extraspecial benefits is counterproductive to patriotism and loyalty to the United States.In such a case, someone (and their family) could be absent from the U.S. for thebetter part of a decade or more and still get rapid naturalization but be way out ofAmicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 4
  5. 5. touch with society as it exists at time of entry into that society as a citizen. That hasbeen the underlying concern of the law since that Naturalization Act of 1790 whichcreated the original residence requirement for naturalization in the first year sincethe U.S. Constitution became effective on Wednesday March 4, 17891. This sameunderlying aversion to allowing citizenship for individuals who are too far fromthe pulse of society was also reflected in Revised Statutes Section 1993 andsuccessor statutes all the way through CCA 2000.Sec. 1993 of Title XXV, Revised Statutes: Enacted April 14, 1802, remainedvalid through the Act of May 24, 1934, when it was retroactively amended toinclude children of U.S. Citizen mothers as well as fathers.Sec. 1993, R.S. "All children heretofore born or hereafter born out of the limits andjurisdiction of the United States, whose fathers were or may be at the time of theirbirth citizens thereof, are declared to be citizens of the United States; but the rightsof citizenship shall not descend to children whose fathers never resided in theUnited States."No "double-dipping" in the citizenship trough. [USCs born abroad cant pass it onwithout meeting physical presence or residence requirement. This has been aconcept in U.S. Citizenship Laws since 9/14/1802.]Mothers were added retroactively, later by The Act of May 24, 1934, & furtheramended the law, prospectively, and was later amended again and again. 8 CFR § 316.5 Residence in the United States. ***** (d) Application for benefits with respect to absences; appeal— (1) Preservation of residence under section 316(b) of the Act. (i) An application for the residence benefits under section 316(b) of the Act to cover an absence from the United States for a continuous period of one year or more shall be submitted to the Service on Form N-470 with the required fee, in accordance with the forms instructions. The application may be filed either before or after the applicants1 The first day the Congress of the United States was seated in session.Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 5
  6. 6. employment commences, but must be filed before the applicant has been absent from the United States for a continuous period of one year. (ii) An approval of Form N-470 under section 316(b) of the Act shall cover the spouse and dependent unmarried sons and daughters of the applicant who are residing abroad as members of the applicants household during the period covered by the application. The notice of approval, Form N-472, shall identify the family members so covered. (iii) An applicant whose Form N-470 application under section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicants family members who were covered under section 316(b) of the Act and who were listed on the applicants Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status. (2) Preservation of residence under section 317 of the Act. An application for the residence and physical presence benefits of section 317 of the Act to cover any absences from the United States, whether before or after December 24, 1952, shall be submitted to the Service on Form N-470 with the required fee, in accordance with the forms instructions. The application may be filed either before or after the applicants absence from the United States or the performance of the functions or services described in section 317 of the Act. (3) Approval, denial, and appeal. The applicant under paragraphs (d)(1) or (d)(2) of this section shall be notified of the Services disposition of the application on Form N-472. If the application is denied, the Service shall specify the reasons for the denial, and shall inform the applicant of the right to appeal in accordance with the provisions of part 103 of this chapter. [56 FR 50484, Oct. 7, 1991, as amended at 56 FR 50487, Oct. 7, 1991; 58 FR 49913, Sept. 24, 1993; 60 FR 6651, Feb. 3, 1995; 62 FR 10394, Mar. 6, 1997]Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 6
  7. 7. Various cases and lines of cases stand for certain concepts in certain specificcontexts. Matters of: Katigbak (eligibiliy at time of filing for employment basedvisas), Bardouille (eligibility at time of filing for family based visas) and, Sorianoor Ho (evidence submission and, on appeal) are examples. 8 CFR § 103.2 through§ 103.5 contain certain basic rules pertaining to evidence but are NOT theexclusive rules for ALL evidence under the various benefits and proceedingsencompassed by the INA. Naturalization, recognition of Citizenship, Adjustmentof Status, Asylum/Refugees, Extreme Hardship and other waivers, and otherprovisions have specific requirements, exceptions, precedents, and court rules thatinform if not govern evidence, filing prerequisites, as well as specific and generaleligibility requirements. Time of adjudication or time of making the full requiredevidentiary showing are viable alternate contexts.The AAO cited Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm.1978) for the concept of invoking the “eligibility at time of filing” concept fromthe earlier Matter of Katigbak and usual favorite source of the concept, in this N-470 Dismissal of a Pro Se Appeal.Matter of Katigbak, 14 I&N Dec. 45 (Comm. 1971), held: “To be eligible for preference classification under 203(a) (3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified member of the professions at the time of the filing of the visa petition. Education or experience acquired subsequent to the filing date of such visa petition may not be considered in support thereof since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought.” [emphases added]Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Regl. Commr. 1978) held: (1) In order to be eligible for nonimmigrant classification under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a) (15)(L), the beneficiary must have been employed continuously for 1 year by the petitioner at the time the petition is filed with the Service. Having worked for the company for only 9 months, beneficiary failed to meet this time requirement.Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 7
  8. 8. (2) Where a beneficiary seeks to qualify for "L" classification on the basis of specialized knowledge, that knowledge must be relevant to the business itself and directly concerned with the expansion of commerce or it must allow an American business to become competitive in overseas markets. In this case beneficiarys specialized knowledge was of the French Educational System. The petition sought to allow her to enter this country to teach the children of the French employees who would be coming here to start the plant, so their childrens educational development would not suffer. This was not the specialized knowledge contemplated by the statute but was related to the provision of a fringe benefit for the companys employees. For that reason it does not qualify the beneficiary for admission under section 101(a)(15)(L) of the Act.Although the N-470, like the application for an L nonimmigrant visa does not havea “priority date” at issue, it does have specific eligibility prerequisites. The L visais for an “intra-company transferee: who was already an employee for at least oneyear in the prior three years and who will be employed in a capacity that ismanagerial, or executive or involves specialized knowledge therefore they arereliant on a specific pre-existing employer-employee relationship that must havebeen in existence for a minimum prescribed period of time and in a certain role.The nonimmigrant petitions like the immigrant petitions do get adjudicated in afirst-in, first-out processing queue. While there is no priority date, there are still thegeneral qualifications as to the pre-existing relationship as defined by statute, andfurther clarified through implementing regulations. As to the petition for visaclassification as an L nonimmigrant, these prerequisites are to the filing of thepetition for classification. The N-470 filed pursuant to INA § 316(b) is notsimilarly situated to the nonimmigrant visa classification petition.Under INA § 316(b)(1), the N-470 is meant to be filed sufficiently in advance ofgoing abroad to work for an extended period but by a certain deadline (beforebeing absent for one full year) in order to accomplish two things: (1) Put USCIS on notice of the LPR’s intention to potentially, prospectively, and eventually use the extended absence benefits, and (2) Preserve eligibility to file for naturalization as expeditiously as allowed in a prospective N-400, Application for Naturalization.Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 8
  9. 9. Under INA § 316(b)(2), the statute requires that “such person proves to thesatisfaction of the Attorney General [now USCIS] that his absence from theUnited States for such period has been for such purpose” in conjunction with afuture application for naturalization. (b)(2) creates a “back-end burden of proof” tosubstantiate that the absence was actually for the purpose that the applicantpreviously put USCIS “on notice of” when (s)he filed the N-470. The “one yearprerequisite” is NOT a filing prerequisite. The “one-year prerequisite” is topreserve one’s prospective eligibility to exercise the right afforded by the statute.Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989) held: (1) In visa petition appeals involving section 204(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), the Board will not review the issue of the bona fides of the petitioners prior marriage if 5 years have elapsed since the petitioner obtained her lawful permanent residence. (2) Where the visa petition was initially approvable subject to the petitioners meeting a burden which has lapsed with the passage of time, the majority finds the rationale expressed in Matter of Bardouille , 18 I&N Dec. 114 (BIA 1981), not applicable. Matter of Atembe , 19 I&N Dec. 427 (BIA 1986); and Matter of Drigo , 18 I&N Dec. 223 (BIA 1982), distinguished.The crux of the matter is summed up by the BIA in this paragraph. “We note that in previous visa petition cases involving section 203(a)(2) of the Act we have held that a petition would not be approved unless the beneficiary was qualified for preference status at the time the petition was filed, to prevent the beneficiary from obtaining a priority date to which he or she was not entitled. Matter of Atembe, 19 I&N Dec. (BIA 1986); Matter of Drigo, 18 I&N Dec. 223 (BIA 1982); Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). In each of the foregoing cases, however, the beneficiaries were indisputably ineligible for preference status when the petitions were filed on their behalf. Matter of Atembe , supra (beneficiary had not been "legitimated" and did not qualify as a "child" within the meaning of section 101(b)(1)(C) of the Act, 8 U.S.C. § 1101(b)(1)(C) (1982)); Matter of Drigo, supra (beneficiary did not qualify as an adopted "child" under section 101(b)(1)(E) of the Act); Matter of Bardouille, supra ("legitimation" of theAmicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 9
  10. 10. beneficiaries occurred after the visa petitions were filed). By contrast, there was no bar to the approval of the instant visa petition when it was filed by the petitioner; the Service had the authority pursuant to section 204(a) (2)(A) to approve the second-preference petition if the petitioner disproved fraud with respect to her prior marriage or if she had been a lawful permanent resident for 5 years. Under these circumstances, where the petition was initially approvable subject to the petitioners meeting a burden which has lapsed with the passage of time, we do not find the rationale expressed in the Bardouille line of cases to be applicable.”Pazandeh is an example of something that potentially could have been a reason todeny a spousal petition but that potential ineligibility lapsed with the passage oftime. In the instant N-470 under discussion, the single potential disqualification toprospectively being unable to even attempt to exercise the right to submit evidencein conjunction with future N-400 had lapsed with the passage of time. The actualreason for which the Director denied the N-470 was misconstrued to begin with.Had AAO properly interpreted the actual statute it would have realized that at thetime of the appeal, the application was approvable even under an improperinterpretation that the “one-year inside the U.S. as an LPR” were actually aprerequisite to the approval. That “one-year inside the U.S. as an LPR”requirement is NOT even a prerequisite to N-470 approval under a correctinterpretation of the statute. The “one-year inside the U.S. as an LPR” requirementis a prerequisite to the exercise of the statutory right to the extended absencebenefit. The applicant is obligated to file an N-470 before the window ofopportunity to apply slams shut at one-year absent from the U.S. after qualifying todepart. In so doing, the applicant will have sought acknowledgement from USCISof his or her intention to potentially exercise that right in the future. The grantingof an N-470 is a far cry from pre-adjudicating an N-400. The N-470 can be quiteeasily invalidated after approval in conjunction with an N-400 denial. The N-400may be reviewed administratively via the filing of an N-336 and is subject tofurther tiers of judicial review under INA § 310(c) and all the way to the U.S.Supreme Court. The errant approval of an N-470 is NOT sufficient in and of itselfto demand naturalization of someone who is not fully eligible for naturalization inevery respect. On the other hand, an erroneously denied N-470 or an extremelydelayed N-470 adjudication may eventually result in a nunc pro tunc approval.Amicus Brief on INA § 316(b) N-470 Aug 22, 2011 Page 10

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