National Interest Waiver AAO Dismissals October-November 2014 to date
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Transcript of National Interest Waiver AAO Dismissals October-November 2014 to date
Contact: [email protected] 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 writ ing 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 pertain ing 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.
Contact: [email protected] 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
Contact: [email protected] 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.
Contact: [email protected] 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
Contact: [email protected] 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."”
Contact: [email protected] 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.”
* * * * *
Contact: [email protected] 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.
Contact: [email protected] 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.”
Contact: [email protected] 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.”
* * * * *
Contact: [email protected] 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:
…..”
* * * * *
Contact: [email protected] 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).
Contact: [email protected] 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.”
Contact: [email protected] 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
Contact: [email protected] 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
Contact: [email protected] 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
Contact: [email protected] 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
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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
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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,
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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)).
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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]
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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
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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
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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
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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.i i
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.”
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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
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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
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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).
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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
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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.”
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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
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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.
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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).
Contact: [email protected] 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
Contact: [email protected] 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/Br
ief%205.PDF [This is my Brief to AAO on applying Kazarian two-part analysis. The one most adopted by USCIS.]
Contact: [email protected] 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%20Ex
ceptional%20Ability/Decisions_Issued_in_2012/Apr032012_01B5203.pdf 8 http://www.slideshare.net/BigJoe5/eb2-n iw-entrepreneur-guidance-10292012
Contact: [email protected] 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
Contact: [email protected] 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!
Contact: [email protected] 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: [email protected] 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
Contact: [email protected] 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.
Contact: [email protected] 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.