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In View of the Language of the Statutory Section In Question

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In View of the Language of the Statutory Section In Question

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In View of the Language of the Statutory Section In Question

  1. 1. Page 1 of 12 In View of the Language of the Statutory Section In Question By Joseph P. Whalen (Tuesday, August 23, 2016) Judicial and administrative appellate bodies have been interpreting statutes and regulations since their inceptions. That is their purpose. As a result of those interpretations, precedents are set. Precedents then join the jurisprudence on an aspect of law. Appellate bodies, especially the Supreme Court of the United States, our ultimate appellate body, holds dear to the concept of stare decisis. According to the online1 Merriam-Webster Dictionary, stare decisis is “a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice”. The phrase is Latin for the proposition to generally, ‘stand by that which has been decided’. This principle can make someone or an appellate body become ‘hidebound’, which in turn means2 “not willing to accept new or different ideas”. When asked to ‘interpret’ the language of a particular statutory section in question, appellate authorities strive very hard to determine if this ‘task’ has already been done. If the precise statutory section has not been addressed under the same set of facts, information, and circumstances; they search around the edges of the current question at issue. They look for similarities and potential corollaries. Analogous situations (facts, information, and circumstances); and past interpretations may shed light on a current case or controversy. In other words, appellate bodies like to ‘borrow’ from past decisions in their own prior cases, earlier panels of their colleagues, and/or other appellate bodies. As crucial as they are, appellate bodies try to avoid setting new precedents. In view of the language of the statutory section in question, some similar or analogous statute, regulation, or set of facts that resulted in an earlier precedent may provide strong guidance in a current case or controversy. Sometimes an earlier precedent is not as good of a match as one would hope. When a “poor match” is stretched to fit and viewed with blinders firmly affixed, bad law is made. This unfortunate happenstance often manifests as a “concept” being “misapplied” and taken beyond its originally intended meaning. 1 See http://www.merriam-webster.com/dictionary/stare%20decisis#legalDictionary 2 See http://www.merriam-webster.com/dictionary/hidebound
  2. 2. Page 2 of 12 The below excerpt holds the beginnings of a valid concept about to go astray as it is stretched too far. In other words, it is possible for a valid interpretation to be stretched beyond its breaking point, and become unreasonable. I will try to illustrate this below. “On appeal, it is pointed out that during the start-up period for a new plant, it was necessary to bring temporarily a large number of French employees from their subsidiary in that country, and in order that their children will not suffer an educational set-back upon return to France, a teacher graduated from the French Educational System is required. It is also pointed out that by the time the beneficiary commences her employment here, she will have the required 1 year of experience. According to the information contained on the nonimmigrant visa petition, at the time of filing the petition with the Service, the beneficiary had approximately 9 months of employment with the petitioning firm. This does not meet the statutory requirement of the beneficiary having been employed continuously for 1 year immediately preceding the time of application for admission. In Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1971)3, although an immigrant visa petition case, it was held that the beneficiary must be qualified at the time of filing the visa petition. In view of the language of section 101(a)(15)(L) of the Act, it must be concluded that the intra-company transferee must likewise have the required 1 year of experience at the time of filing the nonimmigrant petition in her behalf.” Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978)4. Katigbak involved an immigrant visa petition, as opposed to Michelin which dealt with a nonimmigrant petition. Katigbak related to a former visa classification for a position as “a member of the professions” - an accountant - that would now be classified in the EB-3 visa category. Ms. Katigbak had not yet attained her degree when the petition was filed. On appeal, she pointed out that she had finished her studies and was therefore, currently a qualified professional accountant. Unfortunately, it was then too late in relation to that petition and that priority date. Michelin, on the other hand, was a case where the nonimmigrant intracompany transferee did not have a full year of employment with the foreign employer “at time of filing” the petition. It is my contention that Michelin, while ultimately decided correctly, was partly wrong in its holding because it placed an ultra-virus condition on petitioning 3 https://www.justice.gov/eoir/vll/intdec/vol14/2125.pdf 4 https://www.justice.gov/eoir/vll/intdec/vol17/2758.pdf
  3. 3. Page 3 of 12 employers and their employee-beneficiaries. My position is wholly formed in view of the language of sections 101(a)(15)(L) and 248 of the Act. In that particular case, the beneficiary appears to have not yet physically entered the U.S. If she had then a “change of status” could not have been approved. I agree that the beneficiary did not qualify for the classification sought because she did not possess the type of “specialized knowledge” contemplated in the statute. I would have ended the discussion and denied the petition on that point alone. However, if the employee-beneficiary did, in fact, qualify, then the petition could have been approved due to the affirmatively stated future date of entry. There will be more about this point later. I will utilize the current EB-3 statutory language for purposes of this example because the major points are the same as the former statutory provision for the proffered position in Katigbak. The current EB-3 statutory language, in my opinion, still supports the interpretation found in Katigbak. The “at time of filing” principle in relation to “preference” immigrant visa categories is something I fully support. I merely think the concept needs to stay there. I also believe in the validity of Katigbak as far as this point is concerned. To refresh the reader’s memory, the full holding from Katigbak is: “To be eligible for preference classification under section 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.” [Emphasis added.] Additionally, the Regional Commissioner recognized the underlying reasoning of Congress when establishing the preference visa system. This is so because the filing date of an approved preference visa petition will be transformed into a “priority date” for visa allocation and issuance purposes. “Section 204 of the Act requires the filing of a visa petition for classification under section 203(a)(3). The latter section states, in pertinent part: "Visas shall next be made available to qualified immigrants who are members of the professions." (Emphasis added.) It is clear that it was the intent of Congress that an alien be a
  4. 4. Page 4 of 12 recognized and fully qualified member of the professions at the time the petition is filed. Congress did not intend that a petition that was properly denied because the beneficiary was not at that time qualified be subsequently approved at a future date when the beneficiary may become qualified under a new set of facts. To do otherwise would make a farce of the preference system and priorities set up by statute and regulation.” [Emphasis added.] Id. at 49 Currently, an accountant like Ms. Katigbak, would be considered in the category of EB-3 covered under INA §203(b)(3)[8 U.S.C. §1153(b)(3)]5 which states, in pertinent part: (b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: * * * * * (3) Skilled workers, professionals, and other workers (A) In general Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2): (i) Skilled workers Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. (ii) Professionals Qualified immigrants who hold baccalaureate degrees and who are members of the professions. (iii) Other workers Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Please note that “professionals” are described in clause (ii). Clauses (i), relating to “skilled workers”, and (iii), relating to “other workers”, clearly state that they must be “capable, at the time of petitioning”. There is, therefore, very strong support for the proposition that “professionals” must meet their eligibility criteria at the time of petitioning as well. Third-preference employment-based immigrant “professionals” are, after all, described in the present tense. This means that they need to already hold degrees 5 See http://uscode.house.gov/
  5. 5. Page 5 of 12 and already considered to be members of their respective professions. In 1971, the Regional Commissioner recognized this and expressed it as being “… eligible at time of … filing…”. Unlike the provision in question in Katigbak, the language used in the statutory provision describing the nonimmigrant classifications is qualitatively different to the immigrant classifications, overall. To start, nonimmigrant classifications are defined as “exceptions” to immigrants and found within the statutory definition of the word “immigrant”; “[t]he term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens-”, and then describes several dozen types of “nonimmigrants”. See INA §101(a)(15) [8 U.S.C. §1101(a)(15)]. In the case of petitions for nonimmigrant “intracompany transferees”, as in Michelin, there are prerequisites to making an “application for admission” but, in 1978, the Regional Commissioner took those words a bit too literally and transformed a statutory “qualification” prerequisite into a “petition filing” prerequisite. Arguably, the above proposition6 or interpretation, might not stand up to a serious judicial challenge using the right argument. The term “application for admission” is a work-of-art in that Congress included a definition of this term in the Act, more to follow below. (L) subject to section 1184(c)(2) of this title [INA § 214(c)(2)], an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him; The incongruity between immigrant and nonimmigrant eligibility criteria and processes is particularly evident in light of the statutorily mandated blanket L petition7 process. In blanket L petitions, the “importing employer” qualifies itself upfront, without having to name any beneficiaries. The employees are selected later when they actually 6 something offered for consideration or acceptance per www.Merriam-Webster.com/dictionary/proposition 7 See INA §214(c)(2)(A) [8 U.S.C. §1184(c)(2)(A)]
  6. 6. Page 6 of 12 apply for a nonimmigrant visa through a Consular Process or directly with CBP8 while seeking entry at a border crossing or pre-flight inspection abroad, or file for a change of nonimmigrant status with USCIS9. In many of those cases, the beneficiary might not have qualified at time of filing the blanket L petition. Immigrant petitions always name a person whether as an employee or a relative. Most nonimmigrants are named but not always. Nonimmigrant agricultural and nonagricultural seasonal “guest workers” also come through blanket or “group” petition processes. The Regional Commissioner expanded a concept “… eligible at time of … filing…” beyond its original intent in Michelin, by relying too heavily on Katigbak. The analogy falls short because the language in INA §101(a)(15)(L) [8 U.S.C. §1101(a)(15)(L)], supra, defining this class, must be utilized via processes described in INA §214 [8 U.S.C. §1184], which is entitled, “Admission of nonimmigrants”. In turn, INA §101(a)(4) [8 U.S.C. §1101(a)(4)], provides: “[t]he term "application for admission" has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.” In the case of aliens abroad, this definition means to exclude the actual paper- based or electronic “forms” filed with an Embassy or Consulate. In the case of aliens present in the United States, this definition means to exclude the actual paper-based or electronic “forms” filed with USCIS. However, in cases where USCIS will concurrently make to decision to change or extend the alien’s status10, this separate decision should fall within the definition, in my opinion. Certain courts have belabored this issue and have been led astray into the wilds of confusion and fallen prey to obfuscators, thus producing bizarre interpretations about what it means to be “admitted” to the U.S. See Marques v. Lynch, __F.3d__(5th Cir. 2016) [No. 14-60065 August 19, 2016]. See also INA §101(a)(13) [8 U.S.C. §1101(a)(13)] defining what “[t]he terms "admission" and "admitted" mean, with respect to an alien, the 8 CBP = Customs and Border Protection 9 USCIS = United States Citizenship and Immigration Services 10 See INA § 248 [8 U.S.C. § 1258] Change of nonimmigrant classification
  7. 7. Page 7 of 12 lawful entry of the alien into the United States after inspection and authorization by an immigration officer. …” AAO would later use the same logic from Katigbak and Michelin in order to incorporate the concept of “eligibility at time of filing” into the EB-5 visa classification in Izummi, infra. This basic concept does, in fact, apply to the immigrant visa petition stage of EB-5, but AAO took this concept a bit too far. As applied to EB-5, the presumed corollary of ‘prohibiting material changes in an effort to make a deficient petition conform to USCIS requirements’ came into being. See Matter of Izummi, 22 I&N Dec. 169, 175 (AAO 1998)11. However, INS and then USCIS, carried this beyond the immigrant visa petition into other stages and a related application and petition processes where it did not belong. In my opinion, as applied to the EB-5 visa petition, the agency went too far in foisting the material change prohibition onto a large quantity of complex documents. In that the agency cannot adjudicate petition packages at a pace to keep up with the realities of the business world, some of its expectations are unrealistic and artificial. In being too rigid, the agency can stifle economic growth by interfering with project financing in large pooled investments. The EB-5 visa classification is a multi-stage process and may involve another related entity, a Regional Center, which is an “applicant” in its own right, with its own “application” and “amendment” processes. In addition, the EB-5 alien investor or entrepreneur begins his or her immigrant process as a “conditional” permanent resident (CPR). He or she must file another petition in order to lift conditions from status. This later petition is governed by a different statutory provision. The essential point here, is that this long process deals with a myriad of “moving parts” depending on the “kinds of commercial enterprises that will receive capital from aliens” (¶ (a) of Pub. L. 102– 395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874, as amended). There are a great many possibilities for the actual business or investment vehicle that will be infused with a large amount of money, and since USCIS takes an inordinately long period of time to adjudicate EB-5 petitions, material changes will happen whether they like it or not. 11 https://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf
  8. 8. Page 8 of 12 In more recent cases, the concept of the onerous prohibition against material changes to “business plans” for the investment vehicle as it progresses through the multiple stages of the EB-5 process, has been greatly relaxed. It is a welcome development. I will now shift the discussion back to the topic expressed in the title of this article. Now let us take a look at a closer look at the language used in the controlling statute and regulations for the EB-5 immigrant self-petitioner. INA §203 [8 U.S.C. §1153] Allocation of immigrant visas ********** (b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section (INA 201) 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: ********** (5) Employment creation (A) In general Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)- (i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and (ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters). 8 C.F.R. §204.6 Petitions for employment creation aliens. ********* (j) Initial evidence to accompany petition. ********* (4) Job creation—
  9. 9. Page 9 of 12 (i) General. To show that a new commercial enterprise will create not fewer than ten (10) full-time positions for qualifying employees, the petition must be accompanied by: (A) Documentation consisting of photocopies of relevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or (B) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired. To paraphrase a passage from Michelin, “[i]n Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1971), … it was held that the beneficiary must be qualified at the time of filing the … visa petition. In view of the language of section” 203(b)(5) of the Act [8 U.S.C. §1153(b)(5)] and 8 C.F.R. §204.6, it must be concluded that the immigrant investor (or entrepreneur) must likewise have the required comprehensive business plan to create at least ten qualifying jobs, at the time of filing the immigrant self-petition, if the jobs have yet to be created. Here is where the “concept” is perverted and stretched too far. Matter of Izummi, 22 I&N Dec.169, 175 (AAO 1998), states in pertinent part: “… [A]fter the attorneys for AELP obtained a copy of a memorandum issued in December of 1997 by the Service’s Office of General Counsel (“OGC”), “the Limited Partnership Agreement of AELP was further amended to restructure, amend or eliminate some or all of [the] ‘objected-to’ provisions.” These Stage II amendments, counsel continues, should render the instant petition approvable. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements. Counsel states that petitions have previously been amended to reflect program changes and to cure defects in the original documents. …”
  10. 10. Page 10 of 12 In a recent AAO appeal dismissal of a different “preference visa” petition (EB-2), AAO stated that “[a] petitioner cannot file a petition under this classification based on the expectation of future eligibility. Eligibility must be established at the time of filing. 8 C.F.R. § 103.2 (b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971).”, infra. I find this to be a significant point worthy of further contemplation. At this point of this AAO non-precedent decision, Matter of S-J-, ID# 17475 (AAO July 29, 2016), at p. 5, AAO was discussing the third prong of the NYSDOT12 national interest waiver (NIW) test. The third prong involves an analysis of the facts of the case and the beneficiary’s or self-petitioner’s qualifications in order to determine whether or not “…the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” NYSDOT at 218. INA §203(b)(2)[8 U.S.C. §1153(b)(2)] Allocation of immigrant visas (b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: ********* (2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability (A) In general Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. (B) Waiver of job offer (i) National interest waiver Subject to clause (ii), the Attorney General [Secretary of Homeland Security] may, when the Attorney General [Secretary of Homeland Security] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's 12 Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) found at: https://www.justice.gov/eoir/vll/intdec/vol22/3363.pdf
  11. 11. Page 11 of 12 services in the sciences, arts, professions, or business be sought by an employer in the United States. In order to receive an EB-2 national interest waiver, the petitioner, who is often also the beneficiary submitting a self-petition, needs to convince the adjudicator of the likelihood of their prospective contribution towards the national interest(s) of the United States. EB-5 investors (or entrepreneurs) who must self-petition, must convince USCIS that they are “qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise”. EB-5 investors also have to convince the adjudicator of the likelihood of their prospective contribution towards the economy, mainly through employment creation. More specifically, they need to convince USCIS that they “will benefit the United States economy and create full-time employment for no fewer than 10” qualified, work-authorized U.S. workers. The EB-5 investor’s visa requirements are described here as prospective obligations. These obligations are the necessary results of investing capital and engaging in a new commercial enterprise (NCE). Unlike other employment-based immigrants, the intending EB-5 immigrant is not coming to the U.S. to be an employee but instead to be an employer. The investor will be given a “window of opportunity” to bring about the required results and will then be required to ‘prove it’. They ‘prove it’ by submitting corroborating documentary evidence. During the extreme preliminary phase when the “proposed business” is purely hypothetical, the EB-5 petition need only present a convincing idea—a ‘pitch’. During a sad period in EB-5 history, some lousy ideas were given a green light, then failed. Some ideas seemed wonderful but turned out to be nothing but lies. Some U.S.-based promoters offered investment opportunities through their fraudulent assistance including both bona fide and bogus Regional Centers. These fraudsters did nothing but relieve some would-be immigrants of large amounts of cash. Shame on them. There were also some good ideas out there. Some of those succeeded, while others failed, but did so honestly due to a wide variety of business-based and economically-grounded reasons. One final group of struggling businesses may have required vast material changes from the initial business plan in order to survive. Initially, USCIS refused to “lift
  12. 12. Page 12 of 12 conditions” from status in the final petition process due to material changes. However, this rigidity was eventually defeated. In fact, USCIS eventually embraced the necessity of some changes and incorporated the concept in its Final EB-5 Adjudications Policy Memo. This change of posture was fueled by the reluctant but inevitable acceptance by USCIS of the correct interpretation of the controlling statutory provision, INA § 216A [8 U.S.C. § 1186b], Conditional permanent resident status for certain alien entrepreneurs, spouses, and children: (d) Details of petition and interview (1) Contents of petition Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that the alien- (A)(i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (B) is otherwise conforming to the requirements of section 1153(b)(5) of this title [INA § 203(b)(5)]. INS, and then USCIS, interpreted the reference to the EB-5 visa petition requirements, at this later stage, too rigidly. They initially determined that because the original visa petition had to be supported by a business plan that it had to be followed to the letter throughout the entire process. There was likely no leeway in early cases because of the rampant fraud in the early Regional Center Program, including bait-n-switch tactics. Whatever the cause, reality finally caught up to the agency. If one examines the actual statutory requirements for EB-5 visa petition approval; and distills it to its most basic terms all that is really required is: (1) sufficient clean money and, (2) a pulse. However, the agency would never admit that, so, let us compromise and agree that the minimum needed is: (1) sufficient clean money and, (2) a good idea expressed in a comprehensive, detailed, and credible business plan. Another alternative is to present evidence of: (1) full expenditure and, (2) job creation. It is not always easy to get to the bottom line as to minimum visa or program requirements unless we examine those requirements in view of the language of the statutory section in question.

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