EB-2 NIW non-precedent AAO DecisionsAug122010_01B5203.pdfAug042010_02B5203.pdfAug032010_03B5203.pdfAug032010_02B5203.pdfJu...
of influence on the field as a whole. Id. at 219, n. 6. In evaluating the     petitioners achievements, we note that origi...
On appeal, the petitioner submitted a brief stating that the petitioner did    check box d on Part 2 of the Form 1-140 bec...
Review of the record does not establish that the beneficiary is a member of      the professions holding an advanced degre...
In stark contrast to the generosity shown above (in the Apr28 case), the followingcase is more like the USCIS we all know ...
Apr272010_02B5203.pdf [Another discussion on the material change prohibition.]Apr222010_04B5203.pdf [Not a NIW case but is...
Medical Center although there is no evidence he is actually employed there    or that he has an offer to continue working ...
Apr132010_01B5203.pdf [Contains in-depth analysis of the evidence.]      ―On appeal, counsel submits evidence about the re...
of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1) for the proposition that we     cannot "consider facts that come into being on...
petition and the evidence submitted with it are all true and correct." The    individual who signed Form 1-140, [NAME REDA...
While the petitioner, on appeal, contends that it had applied for the waiver      essentially by mistake, the petitioner a...
Mar152010_12B5203.pdfMar152010_11B5203.pdfMar152010_05B5203.pdfMar152010_03B5203.pdfMar152010_02B5203.pdfMar152010_01B5203...
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) readily apply to the     beneficiarys occupation – which appears to be t...
section 203(b)(2) of the Act pursuant to the national interest waiver. As    Congress has identified the type of entrepren...
Feb232010_02B5203.pdf [Procedural technicality will not be overlooked.]Feb232010_01B5203.pdfFeb122010_02B5203.pdfFeb012010...
classification as an alien of exceptional ability in the sciences. The record      readily establishes that the petitioner...
Jan252010_03B5203.pdf [Misfiled EB-5, I-526 denial dismissed on appeal.]      ―The director determined that the evidence s...
Congress awareness of NYSDOT is a matter not of presumption, but of      demonstrable fact. In 1999, Congress amended sect...
Jan072010_06B5203.pdf [I’m getting apolplectic...]      ―While the petitioners research is no doubt of value, it can be ar...
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EB 2 NIW AAO non-precedents of 2010

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EB 2 NIW AAO non-precedents of 2010

  1. 1. EB-2 NIW non-precedent AAO DecisionsAug122010_01B5203.pdfAug042010_02B5203.pdfAug032010_03B5203.pdfAug032010_02B5203.pdfJul082010_06B5203.pdf [Unauthorized practitioner was reported.]May062010_01B5203.pdf ―We concur with the directors finding that the petitioner works in an area of intrinsic merit, biomaterials and orthopaedics, and that the proposed benefits of her work, research advancements in bone tissue engineering, would be national in scope. It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications. Eligibility for the waiver must rest with the aliens own qualifications rather than with the position sought. In other words, we generally do not accept the argument that a given project is so important that any alien qualified to work on this project must also qualify for a national interest waiver. Id. At 218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or training does not inherently meet the national interest threshold. The issue of whether similarly-trained workers are available in the United States is an issue under the jurisdiction of the Department of Labor. Id. at 221. At issue is whether this petitioners contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national interest waiver, over and above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement with some degreeSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 1
  2. 2. of influence on the field as a whole. Id. at 219, n. 6. In evaluating the petitioners achievements, we note that original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.‖May052010_03B5203.pdfApr302010_02B5203.pdfApr302010_01B5203.pdfApr292010_02B5203.pdfApr292010_01B5203.pdf [Not NIW but contains a detailed discussion about thematerial change prohibition.] ―The AAO will affirm the directors denial and dismiss the appeal. Upon review, the directors decision was proper under the law and regulations. As will be discussed in detail, a petitioner may not make material changes to a petition after adjudication in order to establish eligibility. Additionally, the Act prohibits U.S. Citizenship and Immigration Services (USCIS) from providing a petitioner with multiple adjudications for a single petition with a single fee. The petitioner claims that it erroneously requested classification of an RFIC design engineer as a member of the professions holding an advanced degree or an alien of exceptional ability.‖ At p. 2. ***** ―On January 17, 2008, the director denied the petition finding that the petitioner incorrectly indicated that the position requires work from a member of the professions holding an advanced degree or an alien of exceptional ability. The director highlighted the fact that the petitioner listed on the labor certification that the beneficiarys progressive experience could have taken place "pre or post degree." As the petitioner accepts experience gained prior to the obtainment of a bachelors degree in combination with a bachelors degree, the offered position is not a job that requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 2
  3. 3. On appeal, the petitioner submitted a brief stating that the petitioner did check box d on Part 2 of the Form 1-140 because it intended to state on the labor certification that the beneficiarys progressive experience could have taken place pre or post his masters degree, not pre or post his bachelors degree. In the alternative, counsel asserts that USCIS may change the classification to being for a professional or skilled worker. As discussed, the Form 1-140 petition was clearly marked under Part 2 as a petition filed for classification as a member of the professions holding an advanced degree or an alien of exceptional ability. The petitioner signed the Form 1-140 petition under penalty of perjury, attesting that the information on the form was correct. As the petition was unaccompanied by instructions from the petitioner specifying otherwise, the director properly adjudicated the petition pursuant to section 203(b)(2) of the Act. Since the directors decision was not in error, the petitioner is precluded from requesting a change of classification on appeal. A request for a change of classification will not be entertained for a petition that has already been adjudicated. A post adjudication alteration of the requested visa classification constitutes a material change. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm’r. 1998). The initial filing fee for the Form 1-140 petition covered the cost of the directors adjudication of the Form 1-140 petition. Pursuant to section 286(m) of the Act, 8 U.S.C.§ 1356, USCIS is required to recover the full cost of adjudication. In addition to the statutory requirement, Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all direct and indirect costs of providing a good, resource, or service. If the petitioner now seeks to classify the beneficiary as a professional pursuant to section 203(b)(3)(A)(i) of the Act, then it must file a separate Form 1-140 petition requesting the new classification. On appeal, the petitioner has cited no statute, regulation, or standing precedent that permits a petitioner to change the classification of a petition once a decision has been rendered by the director. In this matter, the petitioners appellate submission did not address the beneficiarys eligibility pursuant to section 203(b)(2) of the Act. With regard to regulatory requirements at 8 C.F.R. 204.5(1), the petitioner has not specifically challenged the reasons stated for denial and has not provided any additional evidence to overcome the directors decision.SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 3
  4. 4. Review of the record does not establish that the beneficiary is a member of the professions holding an advanced degree or an alien of exceptional ability. Therefore, the petitioner has not established the beneficiarys eligibility pursuant to section 203(b)(2) of the Act, and the petition may not be approved.‖ At pp. 3-4.Apr282010_03B5203.pdf ―The application for the national interest waiver cannot be approved. The regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national interest] exemption the petitioner must submit Form ETA- 750B, Statement of Qualifications of Alien, in duplicate." The petitioner failed to submit this document or comparable portions of its successor form, ETA Form 9089. Accordingly, by regulation, the petitioner cannot be considered for a waiver of the job offer requirement. The director, however, does not appear to have informed the petitioner of this critical omission. Below, we shall consider the merits of the petitioners national interest claim.‖ At p. 3. ***** ―We note that citations are not the only means by which to show the petitioners impact on his field. Reference letters from independent experts in the field can also play a significant role in this respect. For example, letters from independent references who were previously aware of the petitioner through his reputation and who have applied his work are far more persuasive than letters from his immediate colleagues and coauthors. Here, however, the petitioner has not submitted any letters from independent references who provide specific examples of how his work has significantly influenced his field or has been applied by others to an extent that justifies a waiver of the job offer requirement.‖ At p. 6.For an agency that routinely places more stock and value in its own regulationsthan the statutes that underlie them, it is refreshing to see AAO take the abovestand. This is a clear change since USCIS underwent a change in leadership. Imust ask, IF the case had been approvable on the merits, would AAO haveremanded in order for the Service Center to correct the deficiencies? I would haveto answer that in the affirmative.SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 4
  5. 5. In stark contrast to the generosity shown above (in the Apr28 case), the followingcase is more like the USCIS we all know best. I can’t blame them for taking thestances that they take from one case to the next simply because each case is uniqueunto itself. Incompetent and skeletal filings don’t deserve a break. Think about it!On the one hand, someone is saying “Look at me! I’m so exceptional and specialthat I think I qualify for a National Interest Waiver!” Then they fail to comply withthe filing instructions. What would you think? What would you do? Would youissue an RFE for the initial required evidence that this GENIUS failed to include?I would not have done anything different.Apr272010_04B5203.pdf ―On appeal, counsel argues that the petitioner "has demonstrated that she qualifies for a waiver of the requirement of a job offer and labor certification." Counsel further argues that the director erred by failing to request further evidence before denying the petition. The regulation at 8 C.F.R. § 103.2(b)(8)(ii) provides: If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS [U.S. Citizenship and Immigration Services] in its discretion may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. The director is not required to issue a request for further information in every potentially deniable case. If the director determines that the record lacks initial evidence or does not demonstrate eligibility, the cited regulation does not require solicitation of further documentation. With regard to counsels concern, it is not clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply to afford the petitioner the opportunity to supplement the record with new evidence.‖ At p. 2.Apr272010_05B5203.pdfApr272010_03B5203.pdf [Moot. Already adjusted by other means that the instantpetition.]SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 5
  6. 6. Apr272010_02B5203.pdf [Another discussion on the material change prohibition.]Apr222010_04B5203.pdf [Not a NIW case but is included for discussion of G-28issues.]Apr222010_03B5203.pdfApr162010_02B5203.pdf [Hospital dietician found not worthy of a NIW. What ashock!]Apr162010_01B5203.pdfApr152010_01B5203.pdf [Not a NIW case but has a great footnote.]―The submission of additional evidence on appeal is allowed by the instructions toForm I-290B,which are incorporated into the regulations by 8 C.F.R. §103.2(a)(l).The record in the instant case provides no reason to preclude consideration of anyof the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec.764 (BIA 1988).”Apr132010_06B5203.pdf [Petitioner and counsel confused the Physician specificNIW created in 1999 and the ―other‖ NIW which existed before that last legislativechange, as described in NYSDOT (AAO 1998). AAO addresses this at length.] ―On appeal, counsel asserts that additional evidence or a brief would be filed within 30 days. Counsel dated the appeal July 15, 2009. As of this date, more than eight months later, this office has received nothing further. Thus, the appeal will be adjudicated based on the assertions stated on the Form I- 290B, Notice of Appeal or Motion. For the reasons discussed below, we affirm the directors decision that the petitioner has not demonstrated eligibility for the benefit sought. Specifically, as will be explained in detail below, relevant precedent provides three factors that must be considered. The petitioner, however, relies on the first factor, the substantial intrinsic merit of his work, in combination with a claimed shortage (which falls under the jurisdiction of the Department of Labor) to meet the other two unrelated factors. As will be explained below, this approach is not consistent with relevant precedent.‖ At p. 2. ***** ―Throughout the proceeding, counsel has asserted that the petitioner works in an "underserved" area and has performed services at the Veterans AffairsSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 6
  7. 7. Medical Center although there is no evidence he is actually employed there or that he has an offer to continue working there. Section 203(b)(2)(B)(ii) of the Act provides for a waiver of the alien employment certification in the national interest for an "alien physician" who agrees to work full time as a physician in areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs. The regulation at 8 C.F.R. § 204.12(a) confirms that "alien physician" includes only doctors of medicine and doctors of osteopathy. The petitioner is a doctor of dental surgery. ...‖ At p. 3. ***** ―.... In 1999, Congress amended section 203(b)(2)(B) of the Act in direct response to NYSDOT. Congress, at that time, could have taken any number of actions to limit, modify, or completely reverse the precedent decision. Instead, Congress let the decision stand, apart from a limited exception for certain physicians, as described in section 203(b)(2)(B)(ii) of the Act. Congress did not include doctors of dental surgery under this law. Because Congress has made no further statutory changes in the decade since NYSDOT, we can presume that Congress has no further objection to the precedent decision, including the requirement that the proposed benefits be national in scope for everyone other than alien physicians.‖ At p. 4. Footnotes 2-4 at the bottom of page 6: 2 As stated above, Congress did amend the Act to facilitate waivers for certain alien physicians. Section 203(b)(2)(B)(ii). This amendment demonstrates Congress willingness to modify the national interest waiver statute in response to NYSDOT; the narrow focus of the amendment implies (if only by omission) that Congress, thus far, has seen no need to modify the statute further in response to the precedent decision. 3 In fact, at least two federal district court decisions have upheld the decision. See Gennadi Mikhailik v.Alberto Gonzalez, No. C 04-0904 FMS (N. D. Calif. May 4, 2005) (holding that the factors set forth in NYSDOT "provide a reasonable interpretation of what Congress intended when it created the national interest waiver." See also Talwar v. INS, 2001 WL 767018 (S.D.N.Y. July 9, 2001) (holding that NYSDOT is a "reasonable and predictable interpretation" of the statute). 4 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d , 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. (D.C. Dist. 1990).SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 7
  8. 8. Apr132010_01B5203.pdf [Contains in-depth analysis of the evidence.] ―On appeal, counsel submits evidence about the reputation of the petitioners employer. Nothing in the statute, regulations or NYSDOT, 22 I&N Dec. at 215 suggests that there are employers whose reputations alone warrant a waiver of the alien employment certification process for every alien they wish to hire. We are not persuaded that Congress intended the waiver as a blanket waiver for every distinguished employer.‖ At p. 4. ***** ―At issue is whether this petitioners contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national interest waiver, over and above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. In evaluating the petitioners achievements, we note that original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific innovation serves the national interest must be decided on a case-by-case basis. Id at 221, n. 7.‖ At p. 4.Mar312010_01B5203.pdf [Dissects the testimonial letters of support, in-depth.]Mar262010_05B5203.pdf ―On appeal, counsel submits a brief primarily asserting that the director placed too much reliance on the small number of citations of the petitioners work and failed to consider the reference letters. For the reasons discussed below, including an in-depth discussion of the reference letters, we uphold the directors decision.‖ At p. 2. ***** ―At the outset, we note that the petitioner must establish her eligibility as of the date of filing, in this case June 22, 2006. See 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). In this matter, that means that he must demonstrate her track record of success with some degree of influence on the field as a whole as of that date. All of the case law on this issue focuses on the policy of preventing petitioners from securing a priority date in the hope that they will subsequently be able to demonstrate eligibility. Matter of Wings Tea House, 16 I&N Dec. 158, 160 (Regl. Commr. 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 (Commr. 1998) (citing MatterSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 8
  9. 9. of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1) for the proposition that we cannot "consider facts that come into being only subsequent to the filing of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the hope that her as of yet unpublished or recently published research will subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). Thus, we will only consider evidence relevant to the petitioners eligibility as of that date.‖ At p. 4.Mar262010_03B5203.pdf [EVERYONE MUST READ THISDECISION!]If you want to seek an EB-2 NIW as an IMMIGRATION LAWYER,don’t misquote an obsolete section of 8 CFR and refer to as the INA! ―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 (Regl. Commr. 1972)). For reasons discussed above, the letters submitted on appeal are vague, uncorroborated, and/or irrelevant to the proceeding at hand.‖ At p. 7.Mar262010_02B5203.pdf ―As previously discussed, the petitioner checked box "if at Part 2 of the Form 1-140 petition, indicating that the petitioner sought a national interest waiver requesting to classify the beneficiary as a member of the professions holding an advanced degree or an alien of exceptional ability. The petitioner also signed the Form 1-140 under penalty of perjury, certifying that "thisSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 9
  10. 10. petition and the evidence submitted with it are all true and correct." The individual who signed Form 1-140, [NAME REDACTED] repeatedly referred to the waiver in her letter accompanying the initial filing. There is no credible evidence that the petitioner simply "checked the wrong box." Rather, the record indicates that the petitioner deliberately sought the waiver, but then changed its mind upon learning the caliber of evidence required to show the beneficiarys eligibility for the waiver. The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the specifically requested classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil Quality Stones, Inc., v. Chertoff, 286 Fed. Appx. 963 (9th Cir. July 10, 2008). While the petitioner, here, does not seek an entirely different classification for the beneficiary, the petitioner nevertheless seeks a fundamental readjudication of the petition on a comparable scope. Moreover, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for a single petition with a single fee. The initial filing fee for the Form 1-140 covered the cost of the directors adjudication of the 1-140 petition with a request for the national interest waiver. Pursuant to section 286(m) of the Act, 8 U.S.C. § 1356, USCIS is required to recover the full cost of adjudication. In addition to the statutory requirement, Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all direct and indirect costs of providing a good, resource, or service.1 If the petitioner seeks adjudication of the petition with a labor certification, then the petitioner must file a separate Form 1-140 petition, with the accompanying fee and an approved labor certification, requesting that adjudication. Furthermore, even if we were to entertain a change of adjudication at this late date, we would have to find, also, that the petition was not properly filed. When a petition involves a labor certification, the approved labor certification must accompany the initial filing of that petition. See 8 C.F.R. § 204.5(a)(2). The filing date of the application for labor certification determines the petitions priority date. See 8 C.F.R. § 204.5(d). If a petition that requires an accompanying labor certification is filed without that labor certification, the petition cannot be approved, and a denial on that ground cannot be appealed. See 8 C.F.R. § 103.1 (f)(3)(iii)(B)(as in effect on February 28,2003).SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 10
  11. 11. While the petitioner, on appeal, contends that it had applied for the waiver essentially by mistake, the petitioner also attempts to address the guidelines in Matter of New York State Dept. of Transportation. The petitioner submits documentation of the beneficiarys participation in professional conferences and other evidence of his continuing work in his field. The petitioner, however, had already forfeited its opportunity to submit evidence in support of the waiver claim.‖ At p.6. Foot note in original: 1 See http://www.whitehouse.gov/omb/circulars/a025/a025.htmlMar262010_01B5203.pdf [Not NIW but included for a procedural clarification.]Mar252010_06B5203.pdfMar252010_04B5203.pdfMar162010_04B5203.pdfMar162010_03B5203.pdf [See how NOT to present a case. Scatter-brained comesto mind.]Mar162010_01B5203.pdfMar152010_14B5203.pdf ―In evaluating the reference letters, we note that letters containing mere assertions of industry interest and positive response in the field are less persuasive than letters that provide specific examples of how the petitioner has influenced the field. In addition, letters from independent references who were previously aware of the petitioner through his reputation and who have applied his work are far more persuasive than letters from independent references who were not previously aware of the petitioner and are merely responding to a solicitation to review the petitioners curriculum vitae and work and provide an opinion based solely on this review.‖ At p. 9.Mar152010_13B5203.pdfFootnote #1: On the Form 1-140 petition, the petitioner is listed as the StateUniversity of New York, College of Optometry. The petition, however, is signedby the beneficiary as the self-petitioner.SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 11
  12. 12. Mar152010_12B5203.pdfMar152010_11B5203.pdfMar152010_05B5203.pdfMar152010_03B5203.pdfMar152010_02B5203.pdfMar152010_01B5203.pdfMar122010_03B5203.pdf [Good example of dissection of the evidence, criterionby criterion and explaining when ―comparable evidence‖ may be considered.] ―The director, in denying the petition, found that "the beneficiarys occupation . . . readily lends itself to the type of regulatory evidence to meet the [standard] criteria." On appeal, counsel argues that the witness letters represent "comparable evidence" "because these statements represented strong, first hand proof of the exceptional attributes that [the beneficiary] brings to her position." Counsel does not explain why the standards at 8 C.F.R. 5 204.5(k)(3)(ii) do not readily apply to the beneficiarys occupation, which is the only circumstance that permits consideration of "comparable evidence." Counsel denies that the petitioner is "seeking to substitute other, less probative evidence" in place of "objective evidence that we failed to submit," but the fact remains that the petitioner did not submit sufficient objective evidence to establish eligibility, and seeks to fill the gap with other evidence that falls outside the regulatory guidelines. We agree with the directors finding that the standards listed at 8 C.F.R. § 204.5 (k)(3)(ii) readily apply to the beneficiarys occupation, and therefore the petitioners occupation does not trigger the "comparable evidence" clause at 8 C.F.R. § 204.5(k)(3)(iii). In this instance, the petitioner has already claimed at various times that the beneficiary satisfies three of the six standards, and at least two others appear to apply to the occupation as well (8 C.F.R. §§ 204.5(k)(3)(ii)(B) and (D), which relate, respectively, to length of experience and compensation). If theSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 12
  13. 13. regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) readily apply to the beneficiarys occupation – which appears to be the case here – then the petitioner cannot arbitrarily substitute new criteria tailored to the beneficiarys strengths simply because the beneficiary cannot meet the standard criteria. Furthermore, the "comparable evidence" must, itself, establish that the beneficiarys expertise significantly exceeds that ordinarily encountered in her occupation.‖ At p. 7-8.Mar112010_01B5203.pdfMar052010_01B5203.pdf ―This denial is without prejudice to the filing of a new petition by a United States employer accompanied by an alien employment certification certified by the Department of Labor, appropriate supporting evidence and fee.‖ At p. 10.Feb232010_04B5203.pdf [Merely running website—not necessarily a profession.Complete dissection of the evidence requirements, criterion by criterion andexplaining when ―comparable evidence‖ may be considered.] ―It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications. On appeal, the petitioner notes that he would be self-employed and would not be replacing an available U.S. worker. U.S. Citizenship and Immigration Services (USCIS) acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for an alien employment certification. While this fact will be given due consideration in appropriate cases, the inapplicability or unavailability of an alien employment certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field. Id. At 218, n. 5. We note that Congress did create a separate visa category for alien entrepreneurs, set forth at section 203(b)(5) of the Act, through which an alien must invest at least $500,000 (depending on the location) and create at least 10 jobs. Entrepreneurs are not precluded from seeking classification underSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 13
  14. 14. section 203(b)(2) of the Act pursuant to the national interest waiver. As Congress has identified the type of entrepreneurs it wishes to admit into the United States, however, entrepreneurship in and of itself is not a basis for a national interest waiver. Eligibility for the waiver must rest with the aliens own qualifications rather than with the position sought. In other words, we generally do not accept the argument that a given project is so important that any alien qualified to work on this project must also qualify for a national interest waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or training does not inherently meet the national interest threshold. The issue of whether similarly-trained workers are available in the United States is an issue under the jurisdiction of the Department of Labor. Id. at 221. At issue is whether this petitioners contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national interest waiver, over and above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. We acknowledge that the record contains a patent application filed by the petitioner and his RFID grant proposal. In evaluating the petitioners achievements, we note that original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific innovation serves the national interest must be decided on a case-by-case basis. Id. At 221, n.7.‖ At p. 8. [Emphasis added.] ***** ―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 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 (Regl. Commr. 1972)).‖ At p. 9.SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 14
  15. 15. Feb232010_02B5203.pdf [Procedural technicality will not be overlooked.]Feb232010_01B5203.pdfFeb122010_02B5203.pdfFeb012010_04B5203.pdfFeb012010_03B5203.pdfFeb012010_01B5203.pdfJan272010_01B5203.pdf [Just because you can appeal does not mean that youmust, or even should. AAO is within its rights and indeed, its legal obligation, tocensure and/or report counsel who take advantage of desperate clients by filinginadequate or frivolous appeals or motions that have no a chance of success on themerits.] ―Counsel did not elaborate on his argument, cite to specific errors on the part of the director or describe any evidence the director allegedly failed to analyze. Moreover, counsel failed to provide any new evidence on appeal. In fact, counsel, in his appeal letter, "respectfully again point(s) to the evidence initially submitted with the original filing as well as with the response to the request for evidence" in an attempt to overturn the denial. Accordingly, the record is considered to be complete as it now stands.‖ At p. 2.This decision like oh so many others stands for the proposition that a properAppeal or Motion to Reconsider should be submitted along with a clearstatement and/or brief identifying specifically any erroneous conclusion of law orstatement of fact, along with legal references, and/or identifying the evidence thatone believes was misinterpreted with an explanation of the facts as the appellantand/or counsel interprets them. In addition, it is noted that an Appeal or Motionto Reopen could alternatively provide new evidence that could not be submittedpreviously or that which the petitioner or applicant was never put on notice tosupply.Jan262010_08B5203.pdf ―The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The petitioner claims eligibility forSOME OF THESE COULD BE USED AS PRECEDENTS PAGE 15
  16. 16. classification as an alien of exceptional ability in the sciences. The record readily establishes that the petitioner, whose occupation requires at least a bachelors degree and who holds a doctoral degree, qualifies as a member of the professions holding an advanced degree. A determination regarding the petitioners claim of exceptional ability would be moot; it would occupy significant space in this decision, without affecting the ultimate outcome thereof.‖ At p. 2.In that one may qualify for a National Interest Waiver (NIW) after first beingfound basically eligible for the underlying classification (EB-2), AND that basefinding may be either as a professional with an advanced degree OR ofexceptional ability (EA), people sometimes inappropriately conflate oroutright confuse the eligibility requirements of EA and NIW. This case is anexample of that. Qualifying as an alien of exceptional ability is one of thepossible threshold requirements that must be met BEORE delving into thequalifications for the National Interest Waiver.Jan262010_07B5203.pdf [The last prong of the NYSDOT test is the most difficultto prove.] ―The intrinsic merit and national scope of fuel cell technology are not in dispute here. Such technology could lead to abundant, clean energy that would help to solve many of the environmental, economic, and even political issues that arise from our present reliance on fossil fuels. At the same time, however, the petitioners involvement in fuel cell research is not, by itself, an automatic basis of eligibility. The petitioner must also establish that his impact and influence in that specialty sets him apart from his peers. The petitioner must show not only that fuel cell research is in the national interest, but also that it is in the national interest to ensure the petitioners continued work in the field in the United States.‖ At p. 4.Jan262010_06B5203.pdf [It is becoming abundantly clear to me that ―postdoctoralfellows or researchers‖ and ―graduate or post-graduate researchers‖ and similar jobclassifications are becoming as common as MBAs and almost just as difficult tojustify and qualify for a NIW. Dime-a-dozen folks get lost in the crowd and onlythe brightest shining stars will gain attention and be found eligible for a NIW.]SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 16
  17. 17. Jan252010_03B5203.pdf [Misfiled EB-5, I-526 denial dismissed on appeal.] ―The director determined that the evidence submitted to establish the lawful source of the petitioners investment could not be deemed credible in light of an outstanding warrant for the petitioner in Taiwan alleging breach of trust and diversion of funds.‖ At p. 2.Jan252010_02B5203.pdf Appeal SustainedJan222010_03B5203.pdfJan222010_02B5203.pdf ―On appeal, counsel asserts that the petitioners advanced training in molecular biology makes him irreplaceable on the projects for which he now works. Regardless of the aliens particular experience or skills, even assuming they are unique, the benefit the aliens skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process. Id”. At p. 4.Jan202010_01B5203.pdf [G-28 was a forgery! The REAL attorney is a victim ofidentity theft!]Jan132010_01B5203.pdf [Another misfiled EB-5 case. Dates 1996-1998 andinvolves revocation. Now, moot. Already an LPR.]Jan122010_02B5203.pdf [Another forged G-28!]Jan122010_01B5203.pdf [Another forged G-28!]Jan112010_01B5203.pdf [Another forged G-28!]Jan082010_06B5203.pdf ―While cardiac treatment as a whole serves the national interest, using the reasoning quoted above, the impact of a single cardiologist at the national level is negligible. Significantly, Congress is presumed to be aware of existing administrative and judicial interpretation of statute when it reenacts a statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978). In this instance,SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 17
  18. 18. Congress awareness of NYSDOT is a matter not of presumption, but of demonstrable fact. In 1999, Congress amended section 203(b)(2) of the Act in direct response to the 1998 precedent decision. Congress, at that time, could have taken any number of actions to limit, modify, or completely reverse the precedent decision, such as by applying the waiver to all physicians practicing in a complicated specialty. Instead, Congress let the decision stand, apart from a limited exception for certain physicians working in shortage areas, as described in section 203(b)(2)(B)(ii) of the Act. The petitioner does not seek a waiver under this provision. Because Congress has made no further statutory changes in the decade since NYSDOT, we can presume that Congress has no further objection to the precedent decision. Nevertheless, the petitioner is involved in ongoing clinical research that he publishes and presents at conferences. There is no evidence that he seeks to abandon his clinical research to work solely as a physician. Thus, we are satisfied that the proposed benefits of his research would be national in scope. It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications. Counsel and several references discuss the complicated nature of cardiology and assert that the petitioners ability to perform the complex duties of a cardiologist warrant a waiver of the job offer requirement in the national interest. The ultimate consequence of this argument, however, is a blanket waiver for all well trained cardiologists. It is the position of U.S. Citizenship and Immigration Services (USCIS) to grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers for entire fields of specialization. Id. at 2 17.‖ At p. 4.Jan082010_04B5203.pdf [Another forged G-28.]Jan082010_03B5203.pdfJan082010_02B5203.pdf [Not NIW. Included for finding of fraud.]Jan082010_01B5203.pdf [Not every foreign college/university graduate is eligiblefor a visa! If I see another ―postdoctoral fellow‖ doing further research as he did inhis thesis or dissertation, I may have a stroke!]SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 18
  19. 19. Jan072010_06B5203.pdf [I’m getting apolplectic...] ―While the petitioners research is no doubt of value, it can be argued that any research must be shown to be original and present some benefit if it is to receive funding and attention from the scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for graduation, publication or funding, must offer new and useful information to the pool of knowledge. It does not follow that every researcher who performs original research that adds to the general pool of knowledge inherently serves the national interest to an extent that justifies a waiver of the job offer requirement.‖ At p. 5.Jan072010_05B5203.pdf [Not bound by past mistakes, especially past ―grosserror‖.]Jan072010_04B5203.pdfJan072010_03B5203.pdfJan072010_01B5203.pdf [Appeal Sustained.]SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 19

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