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EB-3 Petitioner for Unskilled Laborer Does Not Know When to Quit


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Good money was thrown after bad in the filing of an appeal and 4 Motions to Reconsider, all of which failed miserably. The petition was deficient upon filing and only got worse from there as one business went under and the successor-in-interest wasted far too much effort, time, and money in multiple merit-less and incompetent filings.

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EB-3 Petitioner for Unskilled Laborer Does Not Know When to Quit

  1. 1. Contact: (716) 604-4233 or (716) 768-6506. Page 1 EB-3 Petitioner for Unskilled Laborer Does Not Know When to Quit By Joseph P. Whalen (August 5, 2014) The I-140 Petition was denied by the Director, Nebraska Service Center (NSC). An appeal was taken to AAO who issued a Notice of Derogatory Information (NDI). The AAO received no response from the petitioner and the Appeal was Dismissed asMoot. The mootness related to the original petitioner having been “suspended” by the California Secretary of State and considered as dissolved. Much later, as the case progresses, we learn that there is a “successor-in-interest” but these details become meaningless as the financials show that there was no ability to pay (ATP) upon filing nor in all but one year during the period 2001-2006, which is the period actually covered by the evidence in the record of proceeding. The NSC Director’s Denial and two RFEs are not available, nor is the AAO’s NDI, however, the AAO non-precedent Decisions are available as shown and linked below. AAO Decisions Outcome w/Link Appeal Dismissed on 02-09-2012 1st MTR Dismissed on 02-01-2013 2nd MTR MTR Granted but Prior Decisions Affirmed on 07-26-2013 3rd MTR Dismissed on 03-28-2014 4th MTR Dismissed on 07-11-2014 The actual Appeal Dismissal was written during the tenure of AAO Chief Perry Rhew1 and starts out thus: DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. It then came before the Administrative Appeals Office (AAO) on appeal. On December 20, 2011, this office provided the petitioner with notice of adverse information in the record and afforded the petitioner an opportunity to provide evidence that might overcome this information. The petitioner is a food manufacturer and processor. It seeks to employ the beneficiary permanently in the United States as a manager pursuant to section 203(b)(3) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1153(b)(3). As required by statute, a labor certification approved by the Department of Labor accompanied the petition. The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director also noted several inconsistencies with respect to the petitioner's business and the position offered. Therefore, the director denied the petition. [Bold and highlighting added for emphasis.] 1 The remaining decisions are under the signatory authority of AAO Chief Ron Rosenberg (MTR Dismissals while “Acting”).
  2. 2. Contact: (716) 604-4233 or (716) 768-6506. Page 2 AAO had checked the status of the petitioning business on the California Secretary of State’s website and found that the petitioner’s status was listed as “suspended”. This brought up the issue of whether or not the job offer was bona fide. After waiting at least thirty (30) days, AAO got no response and dismissed the appeal as both abandoned and moot. They also pointed out that even if the appeal might have been sustained and IF the petition had been approvable at some point, the dissolution of the business would have led to an automatic revocation of the petition. Some time passed and then the 1st Motion to Reconsider was initially incorrectly filed at the wrong location and was returned. When it was re- filed at the correct location, it was late. It was received at the correct address at 42 days after the date of the appeal dismissal decision. Due to that incompetent filing mix-up,this motion was dismissed as untimely. More time passed and the 2nd Motion to Reconsider was properly filed but it was dismissed again. However, AAO did add much more detail about the case. The petitioner is now described as an “Indian Restaurant” seeking to employ the beneficiary as a “Curry Chef”. This is a big change from a “food manufacturer and processor” seeking to hire a “manager”. The job offer on the I-140 is at variance with the labor cert and basically the record is becoming a real mess! This one is well worth reading yourself. Please take note of all the things that you should NOT do. Some of the earlier problems were corrected but the main problem regarding the ability to pay (ATP) was not overcome by the successor-in-interest. This lengthy decision eventually dismissed the appeal on the merits as stated on page thirteen (13). The 3rd Motion to Reconsider was dismissed in short order. It was meritless and merely made unsupported, broad and general statements. It had no bite because it had no teeth. The 4th Motion to Reconsider was also dismissed. This meritless motion was insufficient to reopen and reconsider the most recent prior meritless motion. BEWARE: Studying this series of mistakes may give you a headache. That’s my two-cents, for now.
  3. 3. Contact: (716) 604-4233 or (716) 768-6506. Page 3 About The Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 or (716) 768-6506 E-mail: web or DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.