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Testing, Testing, One-Two-Three
By Joseph P. Whalen (April 19, 2015)
The creation of a test within a Legal Precedent is akin to the scientists’
theoretical hypothesizing in that it requires "generalizing" from the
"specific". This process permits the construction of “a formal approach to
analysis through a generic framework” (a test) applied to a discreet class of
similar and related yet distinctly individualized fact-based cases. Herein
discussed is the test for qualified EB-2 visa beneficiaries seeking the national
interest waiver (NIW)1 plus explorations into other areas. The first of those
other areas concerns some rather basic concepts that could easily be
overlooked. Unfortunately, I have seen these and quite few other “basics”
overlooked far too often. Fasten your seatbelts, this may prove to be a bumpy
ride on a wild and twisting (or is that “twisted”) train of thought! Here goes!
B. HOW DO YOU GET TO “REASONABLE” & HOW IS THAT
Let us start at the beginning. The petitioner or applicant is the party
seeking an immigration benefit so that is the party that bears the burden of
proof. Their burden is two-fold. First the applicant/petitioner must meet
their burden of production by submitting relevant, probative, corroborative,
and most especially, credible evidence. Second, that evidence, along with any
accompanying argument, must meet the burden of persuasion. The standard
of proof is by the preponderance of the evidence unless stated otherwise. In
other words, the evidence must lead the adjudicator to believe that some
claimed fact is “probably” true or that it is “more likely than not” true.
The need for a job offer and labor certification are waived, thus a self-petition is possible. It does not advance the visa
availability—a wait for a visa is still required for most qualified EB-2 beneficiaries.
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The resultant findings-of-fact are then analyzed and evaluated in light of
the controlling law (i.e., statutes, regulations, policies or other agency
interpretations, persuasive case-law, and precedents). In the course of
weighing the evidence, the adjudicator will necessarily be deciding on the
various eligibility criteria. The adjudicator is required to draw reasonable
inferences based on the facts found after weighing and evaluating the
evidence. Finally, it is the purpose and function of those inferences to
persuade the adjudicator to reach a sound conclusion.
The process as described is the essence of an inquisitorial adjudication
which itself is a search for the truth. That approach is the polar opposite of
an adversarial proceeding where each side (each party) is seeking to be
declared “right” and the other to be declared “wrong”. By way of comparison,
think of a criminal trial and the question of being found “guilty” vs. “not
guilty”. Notice that “not guilty” is not the same as “innocent”; truth be
As stated above, a critical component is the weighing of evidence and
drawing reasonable inferences. This process requires the exercise of sound
judgement in order to reach a sound conclusion. The point of a true
inquisitorial adjudication is to strive to reach the truth of the matter. It is
not an attempt to find a way to deny anything or to approve anything. If the
truth is sought, then the point is to reach the “correct” decision, no more, no
less. When the decision is challenged and a review is conducted, there are
certain principles to follow. I rather prefer to look to the Supreme Court,
often as restated by the various Circuit Courts of Appeals or even District
Courts. The following excerpt is from a case reviewing the “reasonableness”
of the sentence for a crime but the same framework is useful to the review of
the “reasonableness” of inferences drawn and facts found in a civil case.
“We review Villarreal’s sentence for reasonableness under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007); United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010).
Reasonableness review has both procedural and substantive components.
United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013).”
United States v. Villarreal, No. 14-6116 (6th Cir. April 16, 2015)
(unpub.) at 2.
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The aforementioned EB-2 visas are allocated for either a professional
with an advanced degree or an alien of exceptional ability. In 1998, the
AAO2 published five Precedent Decisions. Four of those Precedents related
to the EB-5 Immigrant Investor and Regional Center realm of immigration
law. The other Precedent was Matter of New York State Department
of Transportation, 22 I&N Dec. 215 (AAO 1998) (NYSDOT).
In NYSDOT, AAO held:
(1) An alien seeking immigrant classification as an alien of exceptional ability
or as a member of the professions holding an advanced degree cannot meet the
threshold for a national interest waiver of the job offer requirement simply by
establishing a certain level of training or education which could be articulated
on an application for a labor certification.
(2) General arguments regarding the importance of a given field of endeavor,
or the urgency of an issue facing the United States, cannot by themselves
establish that an individual alien benefits the national interest by virtue of
engaging in the field or seeking an as yet undiscovered solution to the
(3) A shortage of qualified workers in a given field, regardless of the nature of
the occupation, does not constitute grounds for a national interest waiver.
Given that the labor certification process was designed to address the issue of
worker shortages, a shortage of qualified workers is an argument for obtaining
rather than waiving a labor certification.
D.NYSDOT NIW Test
However, NYSDOT is best known for a test described therein which
has been used ever since as the only approach to examining a
beneficiary’s or self-petitioner’s qualifications for and thus eligibility for
a “National Interest Waiver” (NIW) aside from the single specific
waiver created afterwards for certain physicians only; with stringent
obligations attached. Congress re-worked the EB-2 category after
NYSDOT was published in order to carve out that single group waiver
The Administrative Appeals Office (AAO) is now housed within USCIS but at the time of those Precedents it was within the United States
Immigration and Naturalization Service (INS) which was an agency of the U.S. Department of Justice from 1933–2003. Referred to by some
as the former INS and by others as Legacy INS, the agency ceased to exist under that name on March 1, 2003, when most of its functions were
transferred to three new entities – U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE),
and U.S. Customs and Border Protection (CBP) – within the newly created Department of Homeland Security (DHS), as part of a major
government reorganization via the Homeland Security Act of 2002 following the September 11 attacks of 2001.
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and as the courts state ad nauseum, it is presumed that Congress is aware
of the current state of the law when it writes a new one. With that stated,
Congress must also have been aware of the footnotes.
Several factors must be considered when evaluating a request for a
national interest waiver. First, it must be shown that the alien seeks
employment in an area of substantial intrinsic merit. This beneficiary’s
field of endeavor, engineering of bridges, clearly satisfies this first
threshold. The importance of bridges, and their proper maintenance, is
immediately apparent. It must be stressed, however, that eligibility is
not established solely by a showing that the beneficiary’s field of
endeavor has intrinsic merit. A petitioner cannot establish qualification
for a national interest waiver based solely on the importance of the
alien’s occupation. It is the position of the Service to grant national
interest waivers on a case by case basis, rather than to establish blanket
waivers for entire fields of specialization.
Next, it must be shown that the proposed benefit will be national in
scope. While the alien’s employment may be limited to a particular
geographic area, New York’s bridges and roads connect the state to the
national transportation system. The proper maintenance and operation
of these bridges and roads therefore serve the interests of other regions
of the country. Moreover, nothing in the record indicates that proper
maintenance of New York’s transportation infrastructure would have an
adverse impact on the interests of other regions. FN2 We therefore
conclude that the occupation in this case serves the national interest. FN3
The final threshold is therefore specific to the alien. The petitioner
seeking the waiver must persuasively demonstrate that the national
interest would be adversely affected if a labor certification were required
for the alien. The petitioner must demonstrate that it would be contrary
to the national interest to potentially deprive the prospective employer
of the services of the alien by making available to U.S. workers the
position sought by the alien. The labor certification process exists
because protecting the jobs and job opportunities of U.S. workers
having the same objective minimum qualifications as an alien seeking
employment is in the national interest. FN4 An alien seeking an
exemption from this process must present a national benefit so great as
to outweigh the national interest inherent in the labor certification
process. Stated another way, the petitioner, whether the U.S. employer
or the alien, must establish that the alien will serve the national interest
to a substantially greater degree than would an available U.S. worker
having the same minimum qualifications. It is not sufficient for the
petitioner simply to enumerate the alien’s qualifications, since the labor
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certification process might reveal that an available U.S. worker has the
qualifications as well. Likewise, it cannot be argued that an alien
qualifies for a national interest waiver simply by virtue of playing an
important role in a given project, if such a role could be filled by a
competent and available U.S. worker. The alien must clearly present a
significant benefit to the field of endeavor.
With regard to the unavailability of qualified U.S. workers, the job
offer waiver based on national interest is not warranted solely for the
purpose of ameliorating a local labor shortage, because the labor
certification process is already in place to address such shortages.
Similarly, the Department of Labor allows a prospective U.S. employer
to specify the minimum education, training, experience, and other
special requirements needed to qualify for the position in question.
Therefore, these qualifications, taken alone, do not justify a waiver of the
certification process which takes these elements into account. FN5
2 There may be cases where the benefit is not only purely local, but may even be
harmful to the national interest. For example, the construction of a dam may benefit
one area while cutting off a crucial water supply to another area.
3 In reaching this conclusion, we note that the analysis we follow in “national
interest” cases under section 203(b)(2)(B) of the Act differs from that for standard
“exceptional ability” cases under section 203(b)(2)(A) of the Act. In the latter type of
case, the local labor market is considered through the labor certification process and
the activity performed by the alien need not have a national effect. For instance, pro
bono legal services as a whole serve the national interest, but the impact of an
individual attorney working pro bono would be so attenuated at the national level as to
be negligible. Similarly, while education is in the national interest, the impact of a
single schoolteacher in one elementary school would not be in the national interest for
purposes of waiving the job offer requirement of section 203(b)(2)(B) of the Act. As
another example, while nutrition has obvious intrinsic value, the work of one cook in
one restaurant could not be considered sufficiently in the national interest for purposes
of this provision of the Act.
4 A limited exception to the minimum requirements rule exists, as set forth in
Department of Labor regulations at 20 C.F.R. § 656.21a, (A U.S. college or university
seeking to fill a teaching position can establish that the alien was found, through a
competitive recruitment and selection process, to be more qualified than U.S.
applicants.) This exception does not apply in this case.
5 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.
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E. REVISING THE NIW TEST FOR THE SELF-EMPLOYED
The portion of the NYSDOT NIW test that is the most difficult to
satisfy is summed up as follows:
“An alien seeking an exemption from  … [the permanent labor
certification] … process must present a national benefit so great as to
outweigh the national interest inherent in the labor certification
Footnote five (5) from NYSDOT is also of particular interest to the
discussion in this essay because it contemplates “self-employed”
individuals, without a U.S. employer who could file for a permanent
labor certification on their behalf. That translates to “self-petitioners”
who might apply for national interest waivers on their own behalf. The
Obama Administration through actions taken and announced via
memos from the Secretary of Homeland Security in November 2014,3
include directives for USCIS to revamp the NIW test for aliens in
certain occupational classes many of whom will likely be self-
Of particular focus are those aliens who seek to enter the U.S. to
pursue their goals as “inventors, researchers, or entrepreneurs of
start-up businesses”. It was also contemplated in the November 2013,
immigration actions that some of these individuals who want EB-2
NIW visas might have to seek Significant Public Benefit Parole as a
preliminary step. A Significant Public Benefit for parole; and a
Prospective Substantial Benefit for an ordinary EB-2 visa under INA §
203(b)(2)(A); and a finding of an alien’s Potential Benefit being In the
National Interest for the NIW under INA § 203(b)(2)(B)(i); Sustained
Investments that Create Jobs for an EB-5 Direct Investment; and
finally, the Regional or National Economic and Other Positive
Economic Effects of Concentrating Pooled Investment In Defined
Economic Zones for an EB-5 Regional Center Affiliated investment
visa, each, have shared qualities that can inform all of us about
3 See http://www.dhs.gov/immigration-action
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NYSDOT was issued as an Administrative Precedent Decision in
1998, which was the same year as the four EB-5 (Immigrant Investor
or Entrepreneur) Precedent Decisions. In the last few years, EB-5 has
seen an unprecedented spike in interest and activity with the number
of Regional Centers ballooning from as little as eleven (11) to almost
650 as of this writing; and from a scant few dozen to as many as a
couple of hundred investments in a single year to a current backlog of
~13,000 I-526 petitions representing as many as ~39,000 visas in a
category capped at ~10,000 per year!
The huge increase in EB-5 investments through Regional Centers
has brought with it more experience in determining what USCIS views
and accepts as prospective benefits to the United States.4 All of that
rather recent and steadily growing experience can to be utilized. Many
concepts crossover from one visa classification to another with little or
no need to re-invent the wheel. True entrepreneurs of start-up
businesses share the essential qualities for potential success
regardless of which visa classification is sought.
Regarding the use of “borrowed concepts” as it pertains to potential
NIW researchers, USCIS and especially AAO have been gaining
more and more experience through many requests for EB-1A,
4 8 U.S.C. § 1153 Note:
Immigration Program [EB-5 Regional Center Program]
Pub. L. 102–395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874 , as amended by Pub. L. 105–119, title I,
§116(a), Nov. 26, 1997, 111 Stat. 2467 ; Pub. L. 106–396, §402, Oct. 30, 2000, 114 Stat. 1647 ; Pub. L. 107–
273, div. C, title I, §11037(a), Nov. 2, 2002, 116 Stat. 1847 ; Pub. L. 108–156, §4, Dec. 3, 2003, 117 Stat.
1945 ; Pub. L. 111–83, title V, §548, Oct. 28, 2009, 123 Stat. 2177 ; Pub. L. 112–176, §1, Sept. 28, 2012, 126
Stat. 1325, provided that:
"(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the
Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a program to implement the provisions
of such section. Such program shall involve a regional center in the United States, designated by the Secretary of Homeland Security
on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved
regional productivity, job creation, or increased domestic capital investment. A regional center shall have jurisdiction
over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled
investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained
in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created
directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will
* * * * *
"(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C.
1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit
aliens admitted under the program described in this section to establish reasonable methodologies for determining the
number of jobs created by the program, including such jobs which are estimated to have been created indirectly
through revenues generated from increased exports, improved regional productivity, job creation, or increased
domestic capital investment resulting from the program.
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extraordinary ability visas as well as EB-1B, outstanding professor and
researcher visas. As for inventors, they could be engulfed in either of
the other two occupations mentioned, (i.e., researcher or
entrepreneur). I have written on this topic previously, see here. I
have no further specific suggestions to add beyond the suggestion to
borrow from areas that the agency already knows.
F. THE UN-TESTABLE? “Proof To The Satisfaction Of…”
In my experience, I have found that some immigration law benefits
are not amenable to a “test”. Some findings-of-fact are too subjective
to fit into a generic framework for decision-making purposes. Certain
cases hinge on the quality of highly variable evidence. These decisions
depend upon the cumulative findings-of-fact and what story they tell.
In addition, since some immigration law benefits are actually legally
enforceable entitlements, they are truly legally protected rights.
Citizenship fits that description best of all. An adjudicator must
conduct a detailed inquisitorial adjudication into any citizenship claim
case and exercise both extreme caution and sound judgement. The
evidence offered must meet a highly subjective standard which, as
shown below is: “proof to the satisfaction of …” the deciding
USCIS official. How could anyone create a “test” for that?
8 U.S.C. §1452 [INA § 341]. Certificates of citizenship or
U.S. non-citizen national status; procedure
(a) Application to Attorney General [Secretary of
Homeland Security] 5 for certificate of citizenship; proof;
oath of allegiance
A person who claims to have derived United States citizenship
through the naturalization of a parent or through the naturalization
or citizenship of a husband, or who is a citizen of the United States
by virtue of the provisions of section 1993 of the United States
Revised Statutes, or of section 1993 of the United States Revised
Statutes, as amended by section 1 of the Act of May 24, 1934 (48 Stat.
797), or who is a citizen of the United States by virtue of the
provisions of subsection (c), (d), (e), (g), or (i) of section 201 of the
Nationality Act of 1940, as amended (54 Stat. 1138), or of the Act of
5 This function has shifted to the Secretary of Homeland Security and delegated to USCIS.
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May 7, 1934 (48 Stat. 667), or of paragraph (c), (d), (e), or (g)
of section 1401 of this title, or under the provisions of the Act of
August 4, 1937 (50 Stat. 558), or under the provisions of section 203
or 205 of the Nationality Act of 1940 (54 Stat. 1139), or under the
provisions of section 1403 of this title, may apply to the Attorney
General [Secretary of Homeland Security] for a certificate of
citizenship. Upon proof to the satisfaction of the Attorney
General [Secretary of Homeland Security] that the applicant is a
citizen, and that the applicant's alleged citizenship was derived as
claimed, or acquired, as the case may be, and upon taking and
subscribing before a member of the Service [USCIS Officer] within
the United States to the oath of allegiance required by this chapter of
an applicant for naturalization, such individual shall be furnished by
the Attorney General [Secretary of Homeland Security] with a
certificate of citizenship, but only if such individual is at the time
within the United States.
The above discussion was merely meant to get the conversation started
and is, by no conceivable measure, worthy of being viewed as conclusive or
non-exhaustive answers to the difficult questions raised therein. Tests are
crafted; they are afterthoughts; or attempts to fill voids left in statutes and
as such; are fully amenable to being revised. The NIW test is in need of
revision because the test currently in place is disproportionately difficult to
satisfy. That portion which throws up the major roadblock is the last part,
step three. Therefore, it is step three that needs re-examination most of all.
Thank you for taking the time to read this essay but, please, don’t stop
pondering the questions raised. If you can contribute to our understanding
of the issues discussed or see further points of interest, please speak up.
Dated this 19th
day of April, 2015.
/s/ Joseph P. Whalen
That’s my two-cents, for now!
Digitally signed by Joseph P. Whalen
DN: cn=Joseph P. Whalen, o, ou,
Date: 2015.04.19 07:15:45 -04'00'