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National Interest Waiver AAO Dismissals October-November 2014 to date

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This compilation is devoted to addressing the DHS Directive to reinterpret the National Interest Waiver criteria as applied to inventors, researchers, and entrepreneurs of start-up enterprises. NYSDOT NIW test addresses: (1) the position's intrinsic merit (2) the work product from that position must be national in scope, and (3) the alien worker has to be special somehow, (s)he has that extra pizzazz that an equally qualified U.S. (or other immigrant) worker ain't got.

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  • This can be considered Part I, as there have been additional EB-2 NIW AAO nonprecedents dated through December 5, 2014, and posted around December 23, 2014.
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National Interest Waiver AAO Dismissals October-November 2014 to date

  1. 1. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 1 National Interest Waiver (EB-2) AAO Dismissals Posted for October & November 2014, To Date1 Compiled By Joseph P. Whalen (December 14, 2014) I. Introduction: In light of the Executive Action announced by the President on November 20, 2014, and one of the associated Memos from the Secretary of Homeland Security, this compilation is devoted specifically to those interested in the directive for USCIS to clarify the standards by which entrepreneurs, including inventors, researchers, and founders of start-up enterprises may be awarded a National Interest Waiver2 (NIW). I have previously commented on this topic3, if interested in that please see here. Currently, the key legal source of interpretation of the statutory provision for the non-physician or “Standard” National Interest Waiver is Matter of New York State Department of Transportation, 22 I&N Dec.215 (AAO 1998), (NYSDOT)4. It is that interpretation that the directive does not specifically name but clearly implies must be revisited and clarified so that the NIW may be utilized more readily by these specified classes of aliens who would most likely be engaged in enterprises, activities and deals that would “…substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States…” The INA Provision At Issue (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)5, 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 services in the sciences, arts, professions, or business be sought by an employer in the United States. [The remainder of the “article” resumes on page 33.] 1 As of this writing there are additional October and November EB-2 AAO Decisions posted but they do not address National Interest Waivers (NIWs) so are left off of this list. 2 Immigration and Nationality Act or INA §203(b)(2)(B)(i) [8 U.S.C. § 1153(b)(2)(B)(i)] 3 SEE: http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-guidance-10292012 4 The immigration regulation pertaining to this waiver is virtually useless because it provides no actual interpretive guidance. 5 Clause (ii) deals exclusively with physicians working in defined shortage areas/locations or for the VA.
  2. 2. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 2 II. Recent AAO Non-Precedents: AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING OCT102014_01B5203.pdf This is but the first of many physicians in this small sample where (s)he forgoes the obvious NIW carved out specifically for physicians who are willing to serve in underserved areas or at a Veterans Administration (VA) hospital/facility. Altruism may indeed be a thing of the past. We now see physicians, especially those fresh out of training, who already have a God Complex and are seeking to be in private practice and billing Medicaid and Medicare directly. Just keep reading. That statement will make more sense as you progress through these pages and better still, through these and other decisions that are posted and available for you to read. Am I a cynic? I’ll answer that question later. Appeal Dismissed for this “Radiologist”. “…The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest. Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise .... " S. Rep. No. 55, l0lst Cong., 1st Sess., 11 (1989). Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate to leave the application of this test
  3. 3. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 3 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING as flexible as possible, although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits. In re New York State Dep't of Transportation, 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) (NYSDOT), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the waiver 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. Id. at 217-18. While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The term "prospective" is included here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative. Id.
  4. 4. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 4 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING NYSDOT created a three prong test for the desired qualifications and attributes that need to be demonstrated in order to be awarded a National Interest Waiver. It is perhaps too restrictive. The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. The intrinsic merit and national scope of medical research are not in dispute in this proceeding. The question at hand is whether the petitioner's impact and influence on his field satisfy the third prong of the NYSDOT national interest test.” OCT102014_02B5203.pdf Appeal of Revocation Dismissed for this “Unconventional Gas Footprint Reduction Lead”. “The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences, the arts, or business. At the time she filed the petition, the petitioner was an unconventional gas footprint reduction lead for [____]. Subsequently, in response to the director's notice of intent to revoke the approval of the petition, the petitioner stated that she is an "independent consultant working for a specific oil producer now." The petitioner asserts that an exemption from the requirement of a job offer, and
  5. 5. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 5 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING thus of a labor certification, is in the national interest of the United States. The director did not dispute that the petitioner qualifies for the classification sought, but found that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner submits a legal brief. Attorney [___] represented the petitioner at the time she filed the appeal on February 7, 2014, and prepared the appellate brief that we received on March 10, 2014. Later, on March 26, 2014, the Executive Office for Immigration Review suspended Mr. [___] from practicing before the Department of Homeland Security. Therefore, we cannot recognize Mr. [___] as the petitioner's attorney of record at this time. The appellate brief will receive due consideration, but we consider the petitioner to be self-represented in this proceeding. * * * * * “…NYSDOT elsewhere states: "Because, by statute, 'exceptional ability' is not by itself sufficient cause for a national interest waiver, the benefit which the alien presents to his or her field of endeavor must greatly exceed the 'achievements and significant contributions' contemplated in the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F)." Id. at 219. Taken as a whole, the NYSDOT decision does not indicate that minuscule influence on the field, however limited, always necessarily suffices to establish eligibility for the national interest waiver. Furthermore, the first quoted passage from NYSDOT specifies that the influence must be "on the field as a whole." Therefore, influence on a particular group or within one corporation does not meet the standard of "influence on the field as a whole."”
  6. 6. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 6 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING OCT102014_03B5203.pdf Appeal Dismissed for this “Computational Linguist”. “When he filed the petition, the petitioner was a junior database analyst/programmer at [____]. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The director denied the petition on November 26, 2013, stating that the petitioner "cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise." The director stated that the petitioner meets the first two prongs of the NYSDOT national interest test, pertaining to intrinsic merit and national scope, but that the petitioner had not established his influence on the field as a whole. To support this conclusion, the director noted the minimal citation history of the petitioner's research, and stated that "the petitioner's only conference presentation was over a decade ago." The director acknowledged the third-party letters in the record, but stated that the letters "do not indicate that the beneficiary's contributions have enjoyed widespread implementation in the field." The director found that the petitioner's other evidence establishes his participation in various projects, but does not show the nature or extent of the petitioner's contributions.” * * * * *
  7. 7. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 7 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING “A recurring assertion in the record, from the petitioner and from other writers, is that few computational linguists are skilled in Southeast Asian languages, and therefore he would be difficult or impossible to replace. Dr. [___] in her letter submitted on appeal, acknowledges that "it is not a basis to grant a waiver of labor certification just because it is difficult to find an ideal US worker to fill the position," but maintains that the project would suffer grave setbacks if were to replace the petitioner mid-project. (The record does not show how the petitioner's subsequent relocation to Fort Wayne has affected his employment in [____]) The Department of Labor regulation at 20 C.F.R. § 656.17(h)(2)(i) provides that the nature of some occupations (e.g. , translators) can justify a foreign language requirement in an application for labor certification as a matter of business necessity. Southeast Asian languages may be underrepresented in some linguistic databases, but this does not make the petitioner's national origin (from a country in Southeast Asia) an affirmative factor in granting the national interest waiver. The asserted scarcity of the petitioner's skills would appear to be a favorable factor in granting labor certification, provided those skills are required for the job. Labor certification would not be available for temporary employment, and Dr. [___]’s assertion that he has recommended the petitioner to various doctoral programs indicates that the petitioner's education and training are not yet complete. If the petitioner's engagement with the project at [___] is temporary as the above information suggests, then the question arises as to why it is in the national interest to grant him permanent immigration benefits for temporary employment that his H -1 B nonimmigrant status already authorizes him to perform.
  8. 8. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 8 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING The director correctly observed that letters alone cannot establish eligibility for the waiver. 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 (Comm'r 1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. Id The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to whether they support the alien's eligibility. See id at 795; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). The writers can attest to their own knowledge of the petitioner's work, within the confines of their own interactions and collaborations with the petitioner or familiarity with his work. They cannot, however, establish broader claims of fact, such as the assertion that the petitioner's work has attracted significant international attention, or has been the subject of inquiry from The petitioner has not relied exclusively on letters, but there is a gap between the information in the letters and the facts established by the other evidence. As a result, the record establishes the overall importance of the projects to which the petitioner has contributed, but not that the petitioner's work on those projects have influenced the field as a whole.”
  9. 9. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 9 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING OCT102014_04B5203.pdf Appeal Dismissed for this “CEO”. “The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in business and as a member of the professions holding an advanced degree. The petitioner seeks employment as the chief executive officer (CEO) of [_____] (The capitalization of [_____] varies in the record.). The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for the classification sought, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner submits a legal brief and three letters.” * * * * * “The petitioner claims eligibility for classification as an alien of exceptional ability in business and as a member of the professions holding an advanced degree. The record establishes that the petitioner, whose occupation requires at least a bachelor's degree and who holds two post-baccalaureate degrees, qualifies as a member of the professions holding an advanced degree. An additional determination regarding the petitioner's claim of exceptional ability would be moot. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.” * * * * *
  10. 10. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 10 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING “The director denied the petition on November 18, 2013, stating that the petitioner had established the intrinsic merit and national scope of his intended occupation, but that he had not shown "a history of achievement with some degree of influence on the field as a whole" at the time of filing. The director found that the letters submitted with the petition did not "describe[] how the petitioner's work has influenced or impacted the beneficiary's field," and that "statements pertaining to the expectation of future results rather than a past record of achievement fail to demonstrate eligibility for a national interest waiver." The director acknowledged the evidence regarding [___] sale of [___] but found: "[n]o evidence was provided to show how this application was selected for this placement. In addition this application's release and the placement on the New and Noteworthy page happened after the filing of this petition."” OCT102014_05B5203.pdf Appeal Dismissed for this “Research Programmer”. “….The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The director issued a request for evidence on September 19, 2013. In that notice, the director stated that the petitioner had established the intrinsic merit of his occupation, but had not met the other two prongs of the NYSDOT national interest test: …..” * * * * *
  11. 11. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 11 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING “The director denied the petition on January 11, 2014, determining that the petitioner had established the intrinsic merit and national scope of the petitioner's employment, but not his influence on the field. The director quoted from letters submitted in response to the request for evidence and, relying on NYSDOT, stated: The employer's assertions regarding the overall importance of an alien's area of expertise cannot suffice, however, to establish eligibility for a national interest waiver. It does not appear to have been the intent of Congress to grant national interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual alien as they relate to the job to be performed. Any objective qualifications which are necessary for the performance of the occupation can be articulated in an application for alien labor certification; the fact that the alien is qualified for the job does not warrant a waiver of the job offer/labor certification requirement. It cannot suffice to state that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, does not inherently meet the national interest threshold.” * * * * * “An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. 8 C.F.R. § 103.2 (b)(1).
  12. 12. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 12 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING At the time the petitioner filed the petition in August 2013, the waiver application relied on a specific fact pattern involving employment at [___] and the petitioner's involvement in specific, identified projects there. The waiver request was predicated on the assertion that it was important for the petitioner to remain at [___]. The appeal makes it clear that this fact pattern no longer applies. The job offer from [____] did not exist until January 2014, and therefore cannot form the basis for immigration benefits with an August 2013 priority date. USCIS cannot properly approve the petition at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). See also Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998) (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 USCIS requirements).” OCT102014_06B5203.pdf Appeal Dismissed for this Alleged “Alien of Exceptional Ability” in Business seeking employment as a “Bank Executive”. “..…The record provides different titles for the petitioner, including "senior vice president,"[___] divisional director" and "director of business development." The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner has not established that he qualifies for classification as an alien of exceptional ability, and that he has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.”
  13. 13. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 13 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING The NIW really becomes a moot point when the beneficiary (self-petitioner in this case) fails to meet the basic requirements for an EB-2 Immigrant Visa. * * * * * “Because the petitioner has not met at least three of the regulatory criteria for exceptional ability, we need not proceed to a final merits determination as described in Kazarian. The petitioner has not established a prima facie claim of exceptional ability in business.” * * * * * “II. National Interest Waiver The second and final issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest. The petitioner cannot qualify for the waiver without first showing eligibility for the underlying immigrant classification, but the director addressed the merits of the waiver application and we will do the same here.” OCT102014_07B5203.pdf This one is a MUST READ! AAO found that the director was in error because the position of a “Bank Official” is not among the “Professions” cited in the INA definition nor could a case be made to include it among “the professions”. Beyond the issues thus far recited, this case tries to liken this Bank Official’s Appeal Dismissed for this “Bank Vice President and Credit Analyst”. The petitioner, a commercial bank, sought to classify the beneficiary as an alien of exceptional ability in business and as a member of the professions holding an advanced degree. “…The director found that the beneficiary "holds the requisite U.S. advanced degree," but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The beneficiary claims no degree above a baccalaureate in business administration from which she earned in January 2006. Therefore, the petitioner's implied contention is that the
  14. 14. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 14 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING duties of overseeing loans to businesses as similar to an EB-5 investor because his duties “helped” create and preserve jobs in the U.S. beneficiary's subsequent six years of post- baccalaureate experience are equivalent to a master's degree.” OCT102014_08B5203.pdf This beneficiary has not done much yet but in a few years anything is possible. Read how the brief severely misquotes the law in an attempt to “pad the credentials” of this bene! Appeal Dismissed for this “Quality Engineer”. “…The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” OCT242014_01B5203.pdf Another MUST READ! Might the outcome be different under a reinterpreted NIW standard for entrepreneurs? I don’t know. We will just have wait to see how USCIS, whether through AAO or OCC or a combination and maybe with some input from IPO, does, in fact, reinterpret the standard. Appeal Dismissed for this “Senior Business Analyst” who seeks to “take over ownership” of a restaurant with an intent to develop an Indian food chain of restaurants. “…The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree [MBA], but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The petitioner stated: "I would be OK with 2 years' conditional green card for the Entrepreneurs as I am very confident that would be ready to come [to] the national stage in 2016." The petitioner filed a petition for classification under section 203(b)(2) of the Act. An entrepreneur can qualify for benefits under that classification, but the classification does not provide
  15. 15. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 15 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING As an alternative, perhaps such an entrepreneur could benefit from “entrepreneur parole” until an EB-2 visa & NIW became more feasible? Again, we will just have to wait and see how that potential avenue for entrepreneurs turns out. for conditional residence for entrepreneurs. Section 203(b)(5) of the Act provides for a separate immigrant classification (known as EB-5) specifically for entrepreneurs. The EB-5 classification, which does provide for conditional residence, has a different petition form (Form I-526, Immigrant Petition by Alien Entrepreneur) and different governing regulations at 8 C.P.R. § 204.6. To qualify for that classification, current regulations require an alien to invest at least $500,000 or $1,000,000 of his own funds (depending on the geographic area of the business) in the commercial enterprise. See 8 C.F.R. § 204.6(f). The petitioner does not claim to have made such an investment. Rather, his business plan makes it clear that he seeks outside capital to fund the venture. The petitioner stated that his restaurant compares favorably to other Indian restaurants in the United States in terms of price, variety, and other factors, but this information does not establish impact or influence on the field as a whole.” OCT242014_02B5203.pdf Medical Researchers who want to get out of obtaining a firm job offer and labor cert need to use EB-1B. Physicians may get a NIW within EB-2 as a general class because Congress carved out an exception for them but it has strings attached. Appeal Dismissed for this “Medical Researcher and/or Physician”. “…The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “An introductory statement submitted with the petition contends that the petitioner "is an outstanding and superb clinical researcher in the field of
  16. 16. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 16 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING Obstetrics and Gynecology" (OB/GYN), who "has produced original scientific contributions that have significantly influenced her field." The petitioner submitted 11 exhibits under the heading of "A wards, Recognitions and Memberships." Such materials can provide partial support for a claim of exceptional ability under the USCIS regulations at 8 C.F.R. § 204.5(k)(3)(ii) (F) and (E), respectively, but by statute, exceptional ability is not presumptive grounds for the waiver. Awards of particular importance can reflect the impact and influence of the petitioner's contributions, but the submitted awards are all at the student or resident level, from institutions where the petitioner was training at the time of the awards. As such, they show that the petitioner was a good student, but they do not establish influence on the field as a whole.” * * * * * “The director denied the petition on January 9, 2014. The director found that the petitioner had met the first two prongs of the NYSDOT national interest test concerning intrinsic merit and national scope, but that she had not established her impact and influence on the field as a whole. The director stated that the petitioner did not show that her published and presented work amount to influential contributions to the field, and that the record does not support claims in the submitted letters regarding the importance and impact of the petitioner's work.” OCT292014_01B5203.pdf The self-petitioner checked two boxes on the I-290B as both an MTR (reopen) and an Appeal. As the MTR criteria was not met (or Appeal Dismissed for this Advanced Degree Holder for an “Unspecific Position in Systems Engineering”. “…The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not
  17. 17. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 17 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING addressed) AAO considered this strictly as an Appeal. Buletini is often cited as meaning that the submission of minimal evidence somehow shifts the burden upon USCIS to “disprove” eligibility. That is nonsense but that argument persists. established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “…The existence of the petitioner's articles is not, by itself, evidence of eligibility, and their submission did not establish a presumption of eligibility that the director was obliged to rebut. The articles show that the petitioner has published on a range of subjects, but they do not establish the extent, if any, to which those articles have influenced the field as a whole.” OCT292014_02B5203.pdf Once again we see a Physician trying for the Standard NIW instead of the one especially for that profession. So many brand new doctors seem to have graduated with the “God Complex” already developed. Are they teaching that now? Appeal Dismissed for this Advanced Degree Holder as a “Physician Specializing in Cardiology”. “…The petitioner has been in training at the [____] Hospitals and Clinics, first as a resident and now as a fellow.” * * * * * “Publication and presentation of scientific research produce benefits that are national in scope because of the dissemination of useful new information to the wider scientific community. Therefore, the petitioner's occupation meets the "national scope" prong of the NYSDOT national interest test, provided that the petitioner continues to perform research. If those research activities are limited to his ongoing, but temporary, training, then there will be no prospective benefit from future research once that training is complete. The petitioner's teaching duties likewise appear to be a function of his temporary role as a fellow at a teaching hospital, and the assertion of a "ripple effect" from passing on "advanced medical and diagnostic procedures" would persuade only if the petitioner
  18. 18. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 18 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING himself originated or significantly improved those procedures. If the procedures existed before the petitioner learned them, and fellows pass them along to newer students as a matter of routine, then it is arbitrary to attribute the "ripple effect" to the petitioner rather than to the mentors who taught those procedures to the petitioner” NOV042014_01B5203.pdf This case contains some very useful historical notes and explanation of the development of the single class of profession [Physicians] who have an optional waiver based on their profession but it has strings attached. These physicians must take jobs within specified underserved areas or at Veterans Administration facilities for a limited period of time in order to get adjusted to lawful permanent resident (LPR) at which time they would be free to move on. There is no specified NIW for any other profession. Appeal Dismissed for this Advanced Degree Holder as a “Dual Language Immersion Teacher and Research Assistant”. “The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.” * * * * * “The above assertions concern the intrinsic merit of dual language immersion programs; they do not establish that the benefit from the work of one such instructor is national in scope. Also, apart from establishing the significance of the occupation, the petitioner must establish how she, individually, qualifies for an exemption from the job offer requirement that normally applies to professionals such as her. …” * * * * * “Being among the first teachers to test a new program is not a contribution comparable to actually developing the program. Further, the record does not show that the petitioner herself has made modifications to the program, but rather has reported issues that lead others to make those modifications. An alien's job-related training in a new method,
  19. 19. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 19 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING whatever its importance, cannot be considered to be an achievement or contribution comparable to the innovation of that new method. See NYSDOT, 22 I&N Dec. at 221 n.7.” * * * * * “Owing to subsequent events, the situation Ms. [___] described is no longer hypothetical. USCIS records show that successfully obtained a labor certification on the petitioner's behalf, and used it as the basis for a new petition seeking to classify the petitioner as a professional under section 203(b)(3)(A)(ii) of the Act. The director approved the petition on August 7, 2014, with a priority date of November 18, 2013. Thus, the petitioner in this proceeding is the beneficiary of an approved immigrant petition, and was not displaced by the recruitment process that led to labor certification. Because it is now a demonstrable fact that labor certification did not displace the petitioner, hypothetical assertions to the contrary have no weight in this proceeding.” * * * * * “The writers of the above letters praised the petitioner's contributions, but did not identify or describe those contributions. Because all of the letters are from [___], they are not first-hand evidence of the application of the petitioner's work outside of that district. The general claim that "other school districts" use the results of the petitioner's work does not establish the national scope or influence of the petitioner's work. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comrn'r 1972)).
  20. 20. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 20 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING The director denied the petition on January 16, 2014, stating: "The [petitioner's] national interest waiver request hinges on the assertion that her contributions to the [___] dual language immersion program will be widespread nationally." The director quoted some of the submitted letters, and concluded: "nothing in the record establishes that any schools outside of [___] have benefitted from [the petitioner's] work." The petitioner's legal brief on appeal does not, for the most part, discuss the specifics of the petition. Instead, the petitioner relies on the argument that the director "applied an incorrect test for determining the national interest." The petitioner notes that section 203(b)(2)(A) of the Act refers to members of the professions holding advanced degrees "or" aliens of exceptional ability, and asserts that the conjunction "or" creates a meaningful distinction between the two classifications. The petitioner asserts that, because "both the statute and the regulations make it clear that [alien of exceptional ability and member of the professions holding an advanced degree] are distinct classifications that address very different situations. There is not a scintilla of indicia that suggests the national interest standard for these two classifications is or should be the same." The petitioner, however, has not established that there should be any presumption that the national interest standard should be different for the two classifications. The petitioner's argument rests, in part, on the wording of the regulation at 8 C.F.R. § 204.5(k)(4)(ii), which "clearly refers only to 'exceptional ability' while purposefully omitting references to aliens who are members of the professions holding advance[d]
  21. 21. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 21 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING degrees." The petitioner asserts that this omission "demonstrates that treating these distinctive categories as one is not proper." The petitioner also claims: "By clearly omitting members of the professions holding advanced degrees or their equivalent from the proposed rules and comment period, while having full knowledge of this omission, violates the rule making procedures of the APA [Administrative Procedures Act]." That regulation, as the petitioner acknowledges, was promulgated in 56 Fed. Reg. 60897 (Nov. 29, 1991). At that time, section 203(b)(2)(B) of the Act made the waiver available only to foreign workers "in the sciences, arts, or business." The statute included no provision to waive the job offer requirement for members of the professions. Therefore, the cited regulation reflects the statute as it existed at the time. The notice and comment requirements of the AP A did not grant the Immigration and Naturalization Service (INS) the authority to expand the availability of the waiver on its own. The regulation did not reflect any conscious effort to create or imply separate national interest standards for the two classifications; rather, it accurately reflected that the law allowed the waiver only for one of the two classifications. After the promulgation of the above regulation, the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991), amended section 203(b)(2)(B) of the Act by inserting the word "professions" after the word "arts," and thereby made the national interest waiver available to members of the professions holding advanced degrees. MTINA
  22. 22. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 22 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING made no further modifications to the national interest waiver clause. In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, 113 Stat. 1312 (Nov. 12, 1999), amended the Act by adding section 203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. Separate regulations exist for those physicians at 8 C.F.R. § 204.12. Thus, those physicians are subject to different waiver provisions, but only because Congress specified those provisions through legislation. The petitioner asserts that members of the professions holding advanced degrees are entitled to a different, presumably lower, threshold for the national interest waiver, but the petitioner cites no authority to establish that threshold. NYSDOT makes no distinction between the two classifications, because there is no statutory or regulatory justification for such a distinction. In 1995, INS published a proposed rule that would have included new regulations relating to the national interest waiver. See 60 Fed. Reg. 29771 (June 6, 1995). The petitioner submits public comments on that proposed rule, submitted by the American Immigration Lawyers Association. The proposed rule was never finalized, and public comments on proposed rules are not policy instruments of the United States government; the comments are not binding on USCIS employees. As a precedent decision, however, NYSDOT is binding on them. See 8 C.F.R. § 103.3(c). NYSDOT, in turn, has survived court challenges. See, e.g., Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL
  23. 23. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 23 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING 767018 (S.D.N.Y. July 9, 2001). Therefore, NYSDOT remains binding precedent, and the director had no discretion to disregard NYSDOT in rendering the decision.” NOV042014_02B5203.pdf Once again we see a physician trying for the Standard NIW and failing. Also, once again it is a relatively new physician. I would think that a new physician would gladly work at a clinic in an underserved area or a VA Hospital in order to gain valuable experience that would make them more marketable later. Maybe I am a fool? Appeal Dismissed for this “Pediatric Hematologist and Oncologist”. “… The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “The petitioner submitted an 82-page statement, providing technical details about her work and studies. The petitioner's own assessment of the significance of her work cannot meet her burden of proof. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Therefore, the outcome of the petition depends on the evidence that the petitioner has submitted to support her claims.” NOV042014_03B5203.pdf This self-petitioner managed to be “considered” an advanced degree professional due to “progressive post- Appeal Dismissed for this “Facilities Team Lead”. “The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with progressive post-baccalaureate experience equivalent to an advanced degree, and as
  24. 24. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 24 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING baccalaureate work experience”. This self-petitioner was represented by someone who was suspended for six months by the BIA to match a six month suspension elsewhere. i As noted in the AAO Dismissal, that attorney was later reinstated.ii an alien of exceptional ability in the sciences, the arts, or business. The petitioner seeks employment as a facilities team lead, gas area, for [____], The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding the equivalent of an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner submits a legal brief, a personal statement, and a copy of a previously submitted a letter from a third party. Attorney [___] represented the petitioner at the time he filed the appeal on February 7, 2014. Later, on March 26, 2014, the Executive Office for Immigration Review (EOIR) suspended Mr. [___] from practicing before the Department of Homeland Security. The EOIR later reinstated Mr. [___] but the October 14, 2014 reinstatement order reads, in part: "If the respondent wishes to represent a party before the [Department of Homeland Security], he must file a Notice of Appearance (Form G-28), including any case in which he was formerly counsel, prior to his suspension." The record includes no new Form G-28 from Mr. [___] to renew his representation of the petitioner. Therefore, we cannot recognize Mr. [___] as the petitioner's attorney of record at this time. The appellate brief will receive due consideration, but we consider the petitioner to be self-represented in this proceeding.”
  25. 25. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 25 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING NOV042014_04B5203.pdf Once again we see a new physician seeking a Standard NIW instead of the Physician NIW. This time the new doctor simply wants to directly bill Medicaid and Medicare. Hey doc, how about you go work at a free clinic or a VA Hospital for a few years before you start overcharging Uncle Sam and the various States and Counties that administer the aforementioned aid programs? Yes, I am cynical! Appeal Dismissed for this “Orthopedic Surgeon”. “At the time he filed the petition, the petitioner was a fellow at [_________], but he already had a job offer to work at [______]; where he has since begun working.” * * * * * “The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.” * * * * * “There is no blanket waiver for physicians who treat patients on Medicaid and/or Medicare, and the petitioner has submitted no evidence to show that his work has resulted in nationally significant savings in Medicaid or Medicare costs. The assertion that other doctors would make poorer or later diagnoses, resulting in greater costs, amounts to unsupported speculation. Regarding the claim that "the Department of Labor does not allow for a combination of occupations when filing a labor certification," the Department of Labor regulation at 20 C.F.R. § 656.17(h)(3) states: If the job opportunity involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity. Combination occupations can be documented
  26. 26. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 26 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity. The quoted regulation shows that "a combination of occupations" is acceptable under certain specified conditions. Furthermore, the record indicates that a combination of clinical, teaching and research duties is customary for medical school faculty members. The petitioner has not shown that the Department of Labor will not approve labor certification applications for medical school faculty positions.” NOV042014_05B5203.pdf This one gets a little bit closer to success but for the absence of a “track record”. The third prong of the NYSDOT NIW Test is person-centric, that is, it relies upon the individual’s attributes, characteristics, and especially the “track record” of the beneficiary or self-petitioner. Appeal Dismissed for this “Pediatric Cardiology Fellow”. “The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.” * * * * * “While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The term "prospective" is included here to require future contributions by the alien, rather than to facilitate the
  27. 27. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 27 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative. Id.” * * * * * “The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on August 15, 2013, with a 16-page supporting letter signed by Dr. [_____] associate clinical professor at [_______]. Some of this letter concerns the intrinsic merit and national scope of research in pediatric cardiology, and the reputation of UCSF as a research institution; these issues are not in dispute in this proceeding. Concerning the petitioner's work, Dr. [_____] stated: [The petitioner] is doing nationally important research work on clinical outcomes for surgical procedures to correct congenital heart defects in newborns and adults .... Specifically, [the petitioner] is Principal Investigator in a number of important research projects in this area. Briefly, the three major projects are: 1. A major multi-center study ... of outcomes of pulmonary artery angioplasty to treat arterial stenosis (arterial narrowing) in children and adults. 2. A study examining the long-term effects of transcatheter closure of an Atrial Septal Defect (ASD - a hole between the upper chamber[s] of the heart) ... . 3. A study evaluating the use of Balloon Atrial Septostomy (BAS) to stabilize newborns with a malformation of the pulmonary artery and aorta known as Transposition of the Great Arteries (TGA).
  28. 28. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 28 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING Dr. [_____] provided technical details about the studies identified above. Because the studies were ongoing at the time of filing, they had not yet produced findings for publication. Dr. [_____] also described an earlier project in which the petitioner studied "premature extubation (that is, removal of infants from ventilators." She stated that the petitioner's "research led to change of practice in [the] neonatal intensive care unit where the study was conducted, and has been published and presented at scientific conferences." She did not indicate that the petitioner's work, once published, led to procedural changes at other hospitals. Several times in her letter, Dr. [_____] claimed that no more than ten physicians in the United States begin training in pediatric interventional cardiology each year, and she asserted that the petitioner's inclusion in this small group is "evidence of his excellence in his field." Dr. [____] identified no source for the statistic. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. ….” NOV042014_06B5203.pdf Appeal Dismissed for this “Oriental Medicine Specialist”. “The sole stated ground for denial is that the petitioner has not established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.”FN1 _______________ FN1 The petitioner submitted a job offer letter from [___] California. [___] has reported the university's closure, and the California Secretary of State has
  29. 29. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 29 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING Don’t just talk about the facts and information. You MUST submit evidence to support any and all claims or assertions made. IF it ain’t documented THEN it didn’t happen! suspended the university's corporate status. Sources: [_______] (printouts added to record September 18, 2014). The job offer, therefore, no longer appears to be valid. This information does not directly affect the outcome of the petition, because eligibility for the national interest waiver rests on the qualifications of the foreign worker seeking the waiver, and the petitioner has not indicated that his ability to serve the national interest depends on employment at [___]. Therefore, this closure is not derogatory evidence resulting in the denial of an otherwise approvable petition. “The petitioner asserted "there is increasing evidence, proven research studies, and testimonials from medical professionals on the positive effects of Oriental Medicine and in treating certain types of diseases," but the petitioner did not identify or submit this evidence.” NOV042014_07B5203.pdf Unlike the director, AAO found that the self- petitioner did NOT meet the antecedent regulatory requirements. The Final Merits Determination (FMD) was actually a moot point. However, since the director below did make a mistake and did perform a FMD, so did AAO. AAO also addresses the “comparable evidence” assertion in the FMD. Appeal Dismissed for this “Violinist” who claimed to be An Alien of Exceptional Ability in the Arts. “…The director found that the petitioner failed to establish that he qualifies for classification as an alien of exceptional ability in the arts, and failed to establish that an exemption from the requirement of a job offer would be in the national interest of the United States.” “[T]he director found that the petitioner had met three of the standards, thereby triggering the final merits determination described in the Kazarian decision. Therefore, we will consider the petitioner's claims of comparable evidence in the context of the final merits determination.”
  30. 30. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 30 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING NOV052014_01B5203.pdf While the specialty angle might work IF the self- petitioner had a track record as an influential figure in the field, THEN this argument could work. However, here as with so many others, this relatively new physician has not had time to build a track record. While it is within the realm of possibility that we may encounter a “prodigy” once in a while, judging from the number of failed attempts, those “prodigies” are few and far between! Appeal Dismissed for this “Physician Specializing in Neonatal-Perinatal Medicine”. “The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences, the arts, or business. The petitioner seeks employment as a physician specializing in neonatal-perinatal medicine. At the time he filed the petition, the petitioner was a fellow at the [___] U.S. Citizenship and Immigration Services (USCIS) records identify his latest employer as the University of Iowa, although USCIS records include no corresponding change of address notice from the petitioner. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. Although the petitioner had claimed exceptional ability, the director made an alternative finding that the petitioner qualifies for classification as a member of the professions holding an advanced degree. This alternative finding does not affect the outcome of the petition or the petitioner's eligibility for related benefits, because section 203(b)(2) of the Act encompasses both classifications. The director found that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” * * * * * “While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The petitioner's assurance that the alien
  31. 31. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 31 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The term "prospective" is included here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative. Id.” NOV052014_02B5203.pdf This is starting to get rather ridiculous with all these “fellows” thinking that they somehow warrant special treatment so early in their medical careers. Appeal Dismissed for this “Pathologist”. “The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks employment as a pathologist. At the time he filed the petition on his own behalf, the petitioner was a surgical pathology fellow at the [_____]. He is currently a clinical fellow in hematopathology at the [_____]. a division of the [_____]. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” In the world of medical training, a “fellow” is an advanced student, very often given a “stipend” (a cash allowance for living expenses) or someone who has obtained specified credentials for a specialty which is required for entry into a professional organization of like specialists. It appears that in either case applicable to our rogues’ gallery of NIW hopefuls are recent graduates who simply don’t want to leave the United States for their country of origin.
  32. 32. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 32 AAO EB-2 NIW Decisions Dated October & November 2014 LINK COMMENTS, EXCERPTS, HOLDING NOV072014_02B5203.pdf I am having difficulty in figuring out why this municipality didn’t simply file for a labor cert. Some filing decisions simply boggle the mind. Appeal Dismissed for this “Dentist”. “…The petitioner, a city department of health and human services, seeks to employ the beneficiary as a senior public health dentist. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the beneficiary qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.” NOV072014_03B5203.pdf Ditto! Or is it? If that statement is accurate, then there may be hope. His evidence is primarily in the form of letters from other doctors who simply blurt forth conclusory statements that are not supported by evidence. Also, some of the doctors are not cardiologists so are probably just friends. Appeal Dismissed for this “Physician Specializing In Cardiology”. “On appeal, the petitioner states that his "very impressive and extensive track record of national contributions to the scientific community" warrants approval of the national interest waiver.” * * * * * “The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on September 13, 2012. He indicated, on Part 6, line 7 of the petition form, that his position was not permanent. This is consistent with the inherently temporary nature of a medical fellowship, which provides training in a given medical specialty.” The above linked cases were the most recently posted EB-2 NIW cases found on the USCIS website as of this writing. I only looked at the two most recent months’ posted non-precedential cases that denied requests for EB-2 visas and Standard National Interest Waivers under INA 203(b)(2)(B)(i).
  33. 33. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 33 III. Analysis A. The Current EB-2 NIW Situation. While some cases fail to meet the basic eligibility requirements for the underlying EB-2 visa classification, when it come to the NIW, it appears to this writer and observer that that vast majority of EB-2 NIW Denials and Dismissals are based on the failure to meet the third prong of the NYSDOT NIW Test. To refresh your memory (and mine) the NYSDOT NIW Test requires:  First, a petitioner must establish that the alien seeks employment in an area of substantial intrinsic merit. Supra. at 217.  Next, a petitioner must establish that the proposed benefit will be national in scope. Supra.  Finally, the petitioner seeking the waiver 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. Supra. at 217-18. The first prong is something that usually will leap from the page into your lap (or head). The second prong usually only requires a logical statement or two of the potential for national influence IF SUCCESSFUL. The third and final prong is the one where most beneficiaries fail, or at least where the petitioner, often a self- petitioner, fails to make a reasonable and logical case. That last prong is often denied because of arguments that there is a labor shortage. That is the worst approach because that is the main function of the PERM Labor Certification. If that argument is your best, then simply file the PERM application! Some may wonder WHY a waiver is sought when a labor certification will suffice. I have noticed that sometimes the intending employer has been debarred by the Department of Labor from filing due to various violations. Other times, there really is no labor shortage and the intent is to artificially inflate the credentials of an average skilled beneficiary for some other reason such as friendship, family relationships, or bribes. B. What Does NYSDOT Currently Offer EB-2 NIW Entrepreneurs? In that the Secretary’s Memo placed an emphasis upon making clarifications of, and indeed, an adjustment to, the eligibility requirements specifically to make the NIW more readily attainable by “entrepreneurs”, it is critical to review the foot note
  34. 34. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 34 from NYSDOT that specifically addressed the subject matter of those who are “essentially self-employed”. Anyway, footnote 5 from NYSDOT at 218 states: “The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification. While this fact will be given due consideration in appropriate cases, the inapplicability or unavailability of a labor 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.” That is not to say that an entrepreneur will always be self-employed or would always need a National Interest Waiver. That situation is not a certainty. Some entrepreneurial-minded intending immigrants may find an employer or “partner” who could file a labor certification application with the Department of Labor on their behalf. The Secretary’s directive was for USCIS to clarify the standards by which entrepreneurs, including: inventors, researchers, and founders of start-up enterprises may be awarded a National Interest Waiver. Initially, any and all potential self-petitioners, employer or partner petitioners, and practitioners need to keep one essential factor foremost in their minds when selecting documentary evidence, writing arguments for their briefs, and assembling the application/petition package. That is the fact that their submission must present so as to lead a reasonable adjudicator to the desired conclusion which is that this person will indeed “serve the national interest to a substantially greater degree than could others in the same field”. It is also crucial that whoever is assembling the evidence package must be mindful to be concise and stick to a clear context. As a reminder the national interest waiver is available for “professionals holding advanced degrees” or “aliens of exceptional ability” in the sciences, arts, professions, or business. Those four basic contextual frameworks are but a starting point from which to begin the case presentation6. Sloppy case preparation and poor case presentation lead to more denials than approvals, more motions dismissed than granted, and fewer appeals sustained than dismissed. For case prep tips, see here. C. Moving Forward With the Reinterpretation of the NIW Criteria! Given the Secretary’s directive and after examining a variety of recent NIW cases, and especially the best example of a would-be entrepreneur [dated April 3, 6 Please see the deeper discussion on the need to “keep it in context” and an expanded statement of these contexts in http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF [This is my Brief to AAO on applying Kazarian two-part analysis. The one most adopted by USCIS.]
  35. 35. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 35 2012]7 which I wrote about previously, which is found here,8 I’d like to offer some suggestions as follows. The third prong of the “NYSDOT NIW Test” is person-centric, that is, it relies upon the individual’s attributes, characteristics, and especially the “track record” of the beneficiary or self-petitioner. For an entrepreneur, we assuredly need to approach this last prong differently. Hopefully, USCIS and AAO will modify the NIW Test to allow a broader approach to meeting the last NIW criterion. Heretofore, AAO has looked ONLY to a history of similar successes. In the case of a new person just staring out, IF they have a great concept, perhaps backed up with a patent or copyright, THEN maybe they should hold off from filing for an EB-2 NIW-based I-140 Petition and instead seek parole or an extended B-1 visa in order to build some kind of record. In the alternative, USCIS and AAO may have to look beyond “similar” past successes and accept “any” past successes as a basis for granting a National Interest Waiver to an inventor, a researcher, or a “start-up” entrepreneur. From 1998 through the present, AAO has been narrowly construing the third prong and continually recites the following: While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of future benefit to the national interest. Id. [NYSDOT ] at 219. For an “inventor”, the self-petitioner or beneficiary could make a showing based on prior inventions that have seen success. However, an inventor has to start somewhere with something. So, if the inventor is new at the task, a patent or copyright (as applicable), might be persuasive to a degree. Some new inventors might actually be proven innovators. Suppose someone has been working in the field and has a track-record via their prior employment where their work-product was owned by their employer. I believe that they should still have bragging rights especially if they don’t have ownership and the financial gains associated with it. I would hope that a substantiated (corroborated) resume would suffice but it would be nice if a former (or current) employer were to acknowledge the contributions made by the self-petitioner or beneficiary. So, a statement either in a letter, press release, or news article or clip should be considered with all the other evidence. 7 http://www.uscis.gov/sites/default/files/err/B5%20- %20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2012/Apr032012_01B5203.pdf 8 http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-guidance-10292012
  36. 36. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 36 For a “researcher”, the self-petitioner or beneficiary needs to demonstrate that they have done at least one significant research project and/or study. It does not have to be an earth-shattering breakthrough but is should shake its own niche at least enough to get some recognition and therefore some kind of write-up. I am talking about more than a thesis or term-paper. I am talking about getting results published, or leading to a research grant, or significant post-graduate fellowship, (meaning something truly special beyond the normal end-point of the education necessary for entry into a profession, sub-specialty, or a particular career-path). Lastly, if they have a body of work, then a bibliography should be included along with the curriculum vitae. For an “entrepreneur”, the self-petitioner or beneficiary could make a showing based on prior businesses that have seen success. However, an entrepreneur has to start somewhere with something. Remember that we are talking about the EB-2 NIW and NOT the E-1 Treaty Trader, E-2 Treaty Investor, or the EB-5 Immigrant Investor (or Entrepreneur). Keeping that in mind, we should still look to something that they seem to have in common. They all had a plan for their venture, while it is not always required that a formal written business plan be presented, it is a very useful piece of evidence. Many entrepreneurs throughout the world don’t have a formal written business plan and still achieve great success. With that disclaimer duly stated, I am discussing necessary and useful (not legally required) documentary evidence to support an EB-2 Immigrant Visa Petition and a National Interest Waiver. A formal well-written business plan (BP) will go a very long way towards convincing USCIS that they would be making the right choice for good of the U.S. economy and hopefully its workforce in approving YOUR (as in, your client’s) petition and waiver. For this BP, I would look partly towards making it Matter of Ho compliant but it has to accomplish something beyond a demonstration of sound business acumen. This EB-2 NIW Compliant BP is where I urge you to make your case as best you can and address the NYSDOT Test, giving great emphasis to the third and last prong. Once again, that prong is person- centric and will come through in that part of the BP where the principal lays out their credentials and discusses their knowledge, skills, and abilities (KSAs). For more on KSAs, see here and here. D. Changes That I’d Like To See The first thing that USCIS, in cooperation with the State Department’s Consular Services-Visa Section, needs to do is implement the Public Interest Parole (PIP) and/or long-term, multiple-entry, extended-stay, B-1 nonimmigrant visas
  37. 37. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 37 especially for Entrepreneurs who make a valid and well-supported assertion that (s)he will attempt to become entrepreneurial as an inventor, researcher, and/or the founder of a start-up enterprise, whether based on his or her own invention or research, or simply based on a history of entrepreneurial success. These Intending Entrepreneurs should by and large be limited to EB-2 NIW prospects but could eventually include intending EB-5 “Stand-Alone”-“Direct” investors who are true entrepreneurs, specifically excluding, the virtually-passive “EB-5 Investors”. I know that that will piss off many in the EB-5 Stakeholder Community but, I think it is the most realistic outer limit that we’re likely to see from USCIS and State. While the overwhelming vast majority of Regional Center (RC) affiliated EB-5 intending immigrants will be virtually passive limited partners or shareholders, most of whom will simply plunk down money which will then be leant to a project developer, a VERY FEW might actually be considered “true entrepreneurs”. Those few might be deserving of at least the extended B-1 visa so as to be allowed to monitor and direct their entrepreneurial investment. My position on “EB-5 Investments” also encompasses non-RC Groups where the EB-5 aliens are relatively passive limited partners or minimally involved co-owners. I think they should only get multiple entry B-1 visas for the principal investor only. PIP status should only be for the likely EB-2 NIW (and the FEW qualifying EB-5) Entrepreneurs and their qualifying immediate family members. IV. Conclusion: It is not for me to dictate what course another must take. I can only make suggestions. I hope that some of my suggestions are put to use and put to the test. I also hope that others will add their voices to the chorus and help to reinterpret the Standard National Interest Waiver (NIW) for EB-2 Immigrant Visa Petitions as applied to: inventors, researchers, and founders of start-up enterprises. The U.S. economy could definitely use the outside stimulus of both money and innovation. Lastly, the U.S. labor force could most assuredly use more places to work. If you made it this far, thanks for hanging in there!
  38. 38. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 38 V. About The Author I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non- accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring9. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. 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. That’s My Two-Cents, For Now! 9 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b- 2)&f=treesort&edition=prelim&num=0&jumpTo=true
  39. 39. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 39 ENDNOTES i There is only one BIA Attorney Discipline case posted that matches the dates in the AAO Appeal Dismissal and here is the text with name left out. On February 12, 2014, the respondent was suspended for six months from the practice of law in the Virgin Islands, by the Supreme Court of the Virgin Islands. Consequently, on March 13, 2014, the Department of Homeland Security (the "DHS") initiated disciplinary proceedings against the respondent and petitioned for the respondent's immediate suspension from practice before the DHS. The Disciplinary Counsel for the Executive Office for Immigration Review (EOIR) then asked that the respondent be similarly suspended from practice before EOIR, including the Board and Immigration Courts. The petition will be granted. ORDER: The petition is granted, and the respondent is hereby suspended from the practice of law before the Board, the Immigration Courts, and the DHS pending final disposition of this proceeding. 8 C.F.R. § 1003.103(a)(2013); 8 C.F.R. § 292.3(c). FURTHER ORDER: The respondent is directed to promptly notify, in writing, any clients with cases currently pending before the Board, the Immigration Courts, or the DHS that the respondent has been suspended from practicing before these bodies. FURTHER ORDER: The respondent shall maintain records to evidence compliance with this order. FURTHER ORDER: The Board directs that the contents of this notice be made available to the public, including at Immigration Courts and appropriate offices of the DHS.
  40. 40. Contact: joseph.whalen774@gmail.com OR 716-604-4233 or 716-768-6506 40 iiHere is the text of the BIA’s reinstatement order with name omitted: The respondent, who has been suspended from practice before the Board, Immigration Courts, and the Department of Homeland Security (the "DHS") for six months, has sought reinstatement to practice. The respondent's request for reinstatement to practice will be granted. On July 23, 2014, the final order of discipline was entered against the respondent. This resulted from the respondent's suspension from the practice of law in the Virgin Islands, by the Supreme Court of the Virgin Islands. The respondent's suspension was deemed to have commenced on March 26, 2014, the date of our immediate suspension order. The respondent requests to be reinstated to practice before the Board, the Immigration Courts, and the DHS. See 8 C.F.R. § 1003.107. The DHS Disciplinary Counsel does not oppose the motion, observing that the respondent has completed the period of suspension, and meets the definition of attorney at 8 C.F.R. § 1101.l(f). The respondent will be reinstated to practice. ORDER: The respondent is reinstated to practice before the Board, the Immigration Courts, and the DHS, as of the date of this order. FURTHER ORDER: Because the respondent has been reinstated, public notices regarding the respondent's suspension should reflect this reinstatement. FURTHER ORDER: If the respondent wishes to represent a party before the DHS or Board, he must file a Notice of Appearance (Form G-28 or Form EOIR-27), including any case in which he was formerly counsel, prior to his suspension.

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