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The Case of the Premature Professor

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The Case of the Premature Professor tells the tale of a denied I-140 for an EB-1B "Outstanding Professor or Researcher" and the six AAO Decisions that followed the initial denial.

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The Case of the Premature Professor

  1. 1. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 1 The Case of the Premature Professor By Joseph P. Whalen (January 12, 2015) I-140, Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to Section 203(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(B) HYPERLINK OUTCOME, COMMENTS Feb232010_01B3203.pdf All six of these AAO Decisions are NON-PRECEDENT DECISIONS. And remember that the NSC denied it originally which makes seven tries for this EB-1B visa! I called this beneficiary a premature professor because some items offered in the years that this case has been dragged out would probably be acceptable IF a newI-140 was filed now. Also, the beneficiary need to find a new petitioner! “DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed.” ***** “The record indicates that the director issued the decision on May 8, 2009. It is noted that the director properly gave notice to the petitioner that it had 33 days to file the appeal and listed the proper fee for an appeal. Although counsel dated the appeal June 10, 2009, it was received with the proper fee by the director on June 23, 2009, 46 days after the decision was issued. Accordingly, the appeal was untimely filed.” Feb082011_01B3203.pdf DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The Administrative Appeals Office (AAO) rejected a subsequent appeal as untimely. The matter is now before the AAO on motion. The motion will be granted, the previous decision of the AAO will be affirmed and the petition will be denied.
  2. 2. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 2 See also: 8 C.F.R. §204.5(i) Petitions for employment-based immigrants; (i) Outstanding professors and researchers. The petitioner is a community development organization. It seeks to classify the beneficiary as an outstanding professor or researcher pursuant to section 203(b)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the beneficiary permanently in the United States as a professor. The director determined that the petitioner had not established that the beneficiary had attained the outstanding level of achievement required for classification as an outstanding researcher and that the petitioner was a qualifying private employer. The AAO rejected the subsequent appeal as untimely filed. On motion, counsel asserts that the AAO used the incorrect receipt date and that the appeal was actually timely. Counsel submits a postal receipt. For the reasons discussed below, the postal receipt does not reflect the date when the appeal was properly filed with the proper fee. Thus, we reaffirm our previous decision rejecting the appeal as untimely filed. In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal within 30 days of after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The affected party filing the appeal must pay the required fee. 8 C.F.R. § 103.3(2)(i). An application or petition is properly filed "if it is signed and executed and the required filing fee is attached. See 8 C.F.R. § 103.2(a)(7)(i). An application or
  3. 3. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 3 petition that "is submitted with the wrong filing fee shall be rejected as improperly filed." Id. Rejected applications and petitions "will not retain a filing date." Id.” May142012_01B3203.pdf “DISCUSSION: The Director, Texas Service Center, denied the employment- based immigrant visa petition. The Administrative Appeals Office (AAO) rejected a subsequent appeal as untimely. The AAO granted a subsequent motion to reopen/reconsider and affirmed the previous decision of the AAO. The matter is now before the AAO on a second motion to reopen/reconsider. The motion will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied.” ***** “A motion to reopen must state the new facts to be proven in the reopened proceeding and, when filed, be supported by affidavits or other documentary evidence. FN1 8 C.F.R. § 103.5(a)(2). …” FN1 Accompanying the motion, the petitioner has submitted additional evidence in support of the beneficiary's eligibility pursuant to section 203(b)(1)(B) of the Act as follows: a book published by the beneficiary in 2009; press releases about that book; course materials authored by the beneficiary for a course taught in 2010 and student compositions from that course written in 2010 and 2011; and, a letter of recommendation from the director of the petitioner's school of practical nursing, where the beneficiary is a faculty member. However, the submitted evidence is not relevant to the AAO's reason for rejecting the appeal. In addition, regarding the beneficiary's book, the related press releases and the course materials, they are not
  4. 4. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 4 relevant to the issue of the beneficiary's eligibility for the benefit sought; these events occurred after October 11, 2007, the date of filing the employment-based immigrant visa petition, and cannot be considered evidence of the beneficiary's eligibility after that date. See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Further, regarding the remaining letter of reference, it is noted that on October 8, 2008, the director issued a Request for Evidence (RFE). The RFE instructed the petitioner to submit evidence of the applicant's eligibility pursuant to section 203(b)(1)(B) of the Act. In denying the application, the director concluded that the documents submitted in response to the RFE were not sufficient to establish that the applicant's eligibility. On appeal, the applicant did not submit any additional evidence previously requested by the director in the RFE. The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the application is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the application. 8 C.F.R. § 103.2(b)(14). As in the present matter, where an applicant has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the applicant had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need not, and does not, consider the sufficiency of the evidence submitted with the motion. Regardless, the AAO notes that the letter of reference does not identify an original research contribution made by the beneficiary to the academic field as a whole, or provide evidence of his recognition beyond his own circle of collaborators.”
  5. 5. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 5 FEB192013_01B3203.pdf “DISCUSSION: The Director, Texas Service Center, denied the employment- based immigrant visa petition. The Administrative Appeals Office (AAO) rejected a subsequent appeal as untimely. The AAO granted two subsequent motions to reopen/reconsider and twice affirmed its previous decisions. The matter is now before the AAO on a third motion to reopen/reconsider. The motion will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied.” ***** “On motion, current counsel does not contest the AAO's finding that the appeal was untimely. Current counsel alleges ineffective assistance of prior counsel in failing to timely file the appeal with the proper fee, and .in erroneously failing to submit evidence in support of the beneficiary's eligibility pursuant to section 203(b)(1)(B) of the· Immigration and Nationality Act (the Act). Upon review, the petitioner has failed to fulfill the prerequisites for allegations of ineffective assistance of counsel. See Matter of Assaad, 23 I&N Dec; 553 (BIA 2003); Matter of Grijalva, 21 l&N Dec. 472 (B1A 1996); Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)), aff’d, 857 F.2d 10 (1st Cir. 1988).” AUG062013_01B3203.pdf DISCUSSION: The Director, Texas Service Center, denied the employment- based immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on motion. The
  6. 6. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 6 motion will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied. The petitioner has previously filed a total of two appeals and three motions with the Administrative Appeals Office (AAO). Most recently, the AAO granted the petitioner's motion to reopen and reconsider, and reaffirmed the denial of the immigrant petition, in a decision dated February 19, 2013. The matter is once again before the AAO on a combined motion to reopen and reconsider. FEB282014_01B3203.pdf “The petitioner has filed a total of two appeals and four motions with the AAO. Most recently, the AAO granted the petitioner's motion to reopen and reconsider, and reaffirmed the denial of the immigrant petition, in a decision dated August 6, 2013. The matter is once again before the AAO on a combined motion to reopen and reconsider. FN1” FN1 The petitioner indicated on the instant Form I- 290B that it was filing an appeal, but then clarified in the brief that it was filing a motion to reopen and reconsider. FN2 Any second or subsequent appeal would have been rejected as improperly filed because the AAO does not exercise appellate jurisdiction over AAO decisions. “The director denied the petition on May 8, 2009 on multiple grounds, concluding that the petitioner failed to establish the following:
  7. 7. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 7 (1) that the beneficiary is recognized internationally as an outstanding professor or researcher; (2) that the petitioner has offered the beneficiary a tenured or tenure-track teaching position; (3) that the position offered to the beneficiary is in his academic field; and (4) that the petitioner employs at least three persons in a full-time research position.” [Slight reformatting, for effect.] It amazes me how someone can be that persistent as to file a petition and then follow it up with an appeal that many motions. Wow! Then there is the cost of all those filing fees and attorney fees. And then there is the problem with the petitioner and the position offered. This “professor” was “premature” also in that he did not find a qualifying employer to petition for him. Nor did he find a position that qualifies for the visa sought. Lastly, his later work that post-dates the original priority date is stronger evidence but cannot be considered except for a new I-140 petition which will have a much later priority date. However, the February 2015 Visa Bulletin shows current for this category world-wide, so a new I-140 will have a visa available immediately regardless of priority date. Why persist with a dud of a position for a non-qualifying employer? Why bother? Employment- Based All Chargeability Areas Except Those Listed CHINA - mainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 15MAR10 01SEP05 C C 3rd 01JAN14 01SEP11 22DEC03 01JAN14 01JAN14 Other Workers 01JAN14 15AUG05 22DEC03 01JAN14 01JAN14 4th C C C C C Certain Religious Workers C C C C C 5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs C C C C C It boggles the mind!
  8. 8. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 8 Short Bio & Disclaimer 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 in my training are those of me 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 mentoring1. 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. I wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. I am an outspoken advocate for improved adjudications at USCIS. Lastly, I have been published in various immigration law outlets with well over 125 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in themost recent. Please click the hyperlinks above and explore my writings. Training is available for any subject under immigration and nationality law. 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! 1 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

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