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GENERALIZING FROM THE SPECIFIC AND BACK AGAIN
By Joseph P. Whalen (Tuesday, October 4, 2016)
Do you remember l...
Page 2 of 5
The scientific method can be adopted in whole or in part. It can also be adapted to
other purposes. If we keep...
Page 3 of 5
of confusion. The above examples do not go through any notice-and-comment
rulemaking. Six of the seven example...
Page 4 of 5
While it may be true that many unqualified individuals apply for the NIW, the test
seems to have gradually, bu...
Page 5 of 5
endeavor as a whole”. It was noted in footnote 6, on page 219 of NYSDOT that the
application of this prong nee...
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GENERALIZING FROM THE SPECIFIC AND BACK AGAIN

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GENERALIZING FROM THE SPECIFIC AND BACK AGAIN

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GENERALIZING FROM THE SPECIFIC AND BACK AGAIN

  1. 1. Page 1 of 5 GENERALIZING FROM THE SPECIFIC AND BACK AGAIN By Joseph P. Whalen (Tuesday, October 4, 2016) Do you remember learning about “the scientific method” back in elementary school? At least, that is when it was introduced in the curriculum back at St. Ambrose where I went from 1st through 8th grades. I bet most of you could use a refresher. I found this posted online1 and it may jog your memory. Start with “Make Observations” which involves specifics and eventually we reach “Develop General Theories”; generalizations. This sort of general theory may be likened to a test involving a set of criteria which is then examined via further observations. Often, regulations governing various legal benefits will list eligibility criteria. Applicants will then submit evidence that they hope will convince an adjudicator that they meet those criteria; testing the theory or hypothesis. 1 https://en.wikipedia.org/wiki/Scientific_method#Process
  2. 2. Page 2 of 5 The scientific method can be adopted in whole or in part. It can also be adapted to other purposes. If we keep the basic process in mind while also keeping in mind the processes involved in inquisitorial adjudication, we can develop and refine various tests. Administrative and judicial case-law is loaded with tests for many things, even if they are not always called tests. For example, Chevron Deference, is a concept that comes from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). It entails making a considered judgement. Specifically, with regard to judicial review of an agency's interpretation (construction) of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency's answer is based on a permissible interpretation (construction) of the statute. There are steps to be followed in evaluating the agency’s resolution of a statutory ambiguity. First, it must be determined if there actually is any ambiguity and if there is, did Congress address it and express its intent, or make its wishes known as to the statute’s proper application? It may be necessary to examine the Congressional Record and especially any Committee Reports on topic to determine if Congress addressed it already. In immigration law there are many tests used in order to determine eligibility. Congress leaves ambiguities in some statutes when they offer certain rewards but are silent on how the agency is to dole them out. In other words, it is often necessary for agencies to use their expertise to formulate processes, procedures, and evidentiary requirements. The majority of the agencies’ expertise is frequently, but not exclusively, best expressed through internal guidance documents such as: 1. Policy Memoranda, 2. Policy Manuals, 3. Training Materials, 4. Directives, 5. Delegations, 6. Standard Operating Procedures (S.O.P.s), and/or 7. Precedent Decisions. Even though the above examples of guidance documents are meant to ‘solve’ problems or fill in gaps, they can sometimes ‘cause’ new problems or open up new areas
  3. 3. Page 3 of 5 of confusion. The above examples do not go through any notice-and-comment rulemaking. Six of the seven examples (1-6) do not necessarily carry the force of law. Delegations of statutory authority must be respected if the authority being delegated actually exists in the statute. Precedent Decisions, on the other hand, are binding in similar future adjudications. Immigration practitioners and adjudicators often misconstrue and warp the meaning of these documents. Any ‘tests’ contained in, or derived from, Precedent Decisions are unfortunately open to interpretation. The way things are now, and for many decades, ‘tests’ and ‘factors’ that play a part in them get re-interpreted through additional Precedent Decisions. This method leads to more confusion and points of contention. That is why, I suggest that USCIS re-work the National Interest Waiver (NIW) test from NYSDOT 2 via notice-and-comment rulemaking instead of something that is one-sided and will be challenged to a greater degree than an inclusive and iterative public process. Before the notice-and-comment rulemaking can begin, the agency has to write and publish something for comment. When formulating an initial rule to put forth, the writers need to use the scientific method, to a degree, in order to generalize from the specific. Here is what that means in practical terms. In NYSDOT, the beneficiary was a civil engineer working on bridges in New York. AAO found that there was intrinsic merit in the profession as applied to the job offered; making bridges safe. It was “good” work. Also, it was national in scope because the roadways in New York connect to other states and thus are part of our national highway system. The final prong of the three-prong test is specific to the alien worker who must be shown to be someone who “will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications”. The final prong is the problem with this test. It is vague and almost “incomprehensible”. When generalizing from the specific facts of this case, the factors discerned sounded good at the time, however, as applied to future cases, the third-prong has lost its viability to the point that the NIW is rarely ever granted which is the opposite of what Congress had in mind when they created it. 2 Matter of New York State Department of Transportation, 22 I&N Dec.215 (AAO 1998).
  4. 4. Page 4 of 5 While it may be true that many unqualified individuals apply for the NIW, the test seems to have gradually, but steadily, become more restrictive. The Secretary recognized what happened over time and directed USCIS to reexamine the NIW criteria. When AAO originally described the third-prong it was broader than it is now. NYSDOT states: “The final threshold is therefore specific to the alien. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. Stated another way, the petitioner, whether the U.S. employer or the alien, 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 is not sufficient for the petitioner simply to enumerate the alien’s qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well. Likewise, it cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker. The alien must clearly present a significant benefit to the field of endeavor.” Id. 217-218, footnote omitted. The standard blurb currently used in AAO decisions describing the NIW criteria includes: “… Finally, the petitioner seeking the waiver must establish that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Id. at 21 7-18. While the national interest waiver hinges on prospective national benefit, a petitioner's assurance that he or she will, in the future, serve the national interest cannot suffice to establish prospective national benefit. Id. at 219. Rather, a petitioner must justify projections of future benefit to the national interest by establishing a history of achievement with some degree of influence on the field as a whole. Id. at 219, n. 6.” Matter of C-M-S-, ID# 18274 (AAO Sept. 20, 2016), at p. 2 It is this author’s contention that USCIS and AAO subsequently went too far in applying this prong by always demanding the alien beneficiary or self-petitioner must significantly benefit the field of endeavor, which is often expressed as “the field of
  5. 5. Page 5 of 5 endeavor as a whole”. It was noted in footnote 6, on page 219 of NYSDOT that the application of this prong need not be quite so onerous. “6 It should be noted that the alien’s past record need not be limited to prior work experience. The alien, however, clearly must have established, in some capacity, the ability to serve the national interest to a substantially greater extent than the majority of his or her colleagues. The Service here does not seek a quantified threshold of experience or education, but rather a past history of demonstrable achievement with some degree of influence on the field as a whole. Academic performance, measured by such criteria as grade point average, cannot alone satisfy the national interest threshold or assure substantial prospective national benefit. In all cases the petitioner must demonstrate specific prior achievements which establish the alien’s ability to benefit the national interest. Instead of the “some degree” evidentiary standard, USCIS and AAO seem to always demand that the alien satisfy the “substantially greater degree” evidentiary standard when evaluating “specific prior achievements” rather than when evaluating the alien’s potential service to the national interests of the United States. Meanwhile, the phrase “in some capacity” seems to have disappeared along with “some degree”. Adjudicators are then left with this warped concept in mind: “[A] petitioner must justify projections of future benefit to the national interest by establishing a history of [specific prior] achievement[s] with some [a substantially greater] degree of influence on the field as a whole.” In short, the alien need only make a showing that he or she will, in some capacity, more likely than not, serve the national interest better than the majority of his or her colleagues. Let us not forget that a majority only means at least 50.1%. See generally, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), and NYSDOT, supra. It seems to this author that problems with interpretations only compound over time. NYSDOT was issued in 1998, and it is the sole Administrative Precedent Decision interpreting the general NIW. In other waiver contexts, the BIA and past INS Officials have been prolific with re-interpretations. The EB-2 NIW criteria is very long past due for an official re-interpretation. Since there is only a single Precedent with which to contend and to consider, notice-and-comment rulemaking may now be the best approach to take. In addition, since AAO’s non-precedents are now citable, they might be easier to use as source material for ideas about improved NIW eligibility criteria and a reformulated test. Please use a methodical approach to making improvements, and start making suggestions. That’s my two-cents, for now.

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