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RECENT IMMIGRANT WORKER VISA PETITIONS Compiled By Joseph P. Whalen (Monday, October 5, 2015)

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E11, EB-1A “ALIENS OF EXTRAORDINARY ABILITY”

SEP042015_01B2203.pdf

Matter of H-D-, ID# 13587 (AAO Sept. 4, 2015)

APPEAL OF TEXAS SERVICE CENTER DECISION

SUMMARILY DISMISSED

The Petitioner, a volleyball coach, seeks classification as an "alien of

extraordinary ability" in athletics. ……. The Petitioner has not specifically

addressed the reasons stated for denial and has not provided any additional

evidence. As the Petitioner did not provide any specific statement or

argument regarding the basis of his appeal, the appeal must be summarily

dismissed.

SEP082015_01B2203.pdf

Matter of M-C-R-, ID# 13190 (AAO Sept. 8, 2015)

APPEAL OF NEBRASKA SERVICE CENTER DECISION

SUMMARILY DISMISSED

The Petitioner seeks classification as an "alien of extraordinary ability" in

business. …

The Petitioner filed the Immigrant Petition for Alien Worker (Form I-140)

on January 14, 2014, without any supporting documentation. On August

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25, 2014, the Director issued a request for evidence (RFE) advising the

Petitioner to submit evidence to satisfy the evidentiary requirements set

forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time

achievement or evidence that meets at least three of the ten regulatory

criteria. Although the RFE was properly addressed to the Petitioner's

address of record, she did not respond to the RFE. The Director denied the

petition on December 15, 2014, because the Petitioner had not submitted

documentation meeting the evidentiary requirements at 8 C.F.R §

204.5(h)(3).

The Petitioner filed the Notice of Appeal or Motion (Form I-290B) on

January 16, 2015, without any supporting evidence relating to her eligibility

for the classification sought. In Part 3 of the Form I- 29GB, the Petitioner

checked box "l.b." indicating "[m]y brief and/or additional evidence will be

submitted to the AAO within 30 calendar days of filing the appeal." Part 4

of the Form I-290B instructs the petitioner to "[p]rovide a statement that

specifically identifies an erroneous conclusion of law or fact in the decision

being appealed." In her statement, the Petitioner asserts that she did not

receive the Director's RFE, and that she contacted U.S. Citizenship and

Immigration Services to request that the RFE be re-sent.

The Petitioner indicates that on November 25, 2014, the Director remailed

the RFE to her address of record, and then subsequently denied the petition

on December 15, 2014. The Petitioner further states that "additional

documents will be submitted to the AAO in 30 days." The appeal was filed

on January 16, 2015. As of this date, more than seven months later, we have

received nothing further. The Petitioner's statement does not identify any

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erroneous conclusion of law or fact in the Director's decision. She does not

specifically challenge any of the Director's findings or point to specific

errors in the Director's determination that she had not satisfied the

evidentiary requirements set forth at 8 C.F.R § 204.5(h)(3).

SEP082015_02B2203.pdf

Matter of B-C-, ID# 12974 (AAO Sept. 8, 2015)

APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED

The Petitioner, an individual, seeks classification as an individual "of

extraordinary ability" in the sciences. ….

….. The Director determined that the Petitioner had not satisfied the initial

evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires

documentation of a one-time achievement or evidence that meets at least

three of the ten regulatory criteria.

On appeal, the Petitioner submits a statement with additional and

previously submitted materials. For the reasons discussed below, we agree

that the Petitioner has not established his eligibility for the classification

sought. ….

SEP092015_01B2203.pdf

Matter of R-M-R-, ID# 13044 (AAO Sept. 9, 2015)

APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED

The Petitioner, a violist and mandolinist, seeks classification as an "alien of

extraordinary ability" in the arts. …

The Director determined that the Petitioner had not satisfied the initial

evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires

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documentation of a one-time achievement or evidence that meets at least

three of the ten regulatory criteria.

On appeal, the Petitioner submits a brief and additional evidence. The

Petitioner asserts that he meets the categories of evidence at 8 C.F.R. §

204.5 (h)(3)(i), (ii), (iii), (iv), (v), (vi), (vii), and (viii). In addition, the

Petitioner states that the Director incorrectly held the petitioner to a higher

standard of proof.

We agree with the Petitioner that the standard of proof in this matter is

"preponderance of the evidence." The "preponderance of the evidence"

standard, however, does not relieve the Petitioner from satisfying the basic

evidentiary requirements of the statute and regulations. Therefore, if the

statute and regulations require specific evidence, the petitioner is required

to submit that evidence. In most administrative immigration proceedings,

the petitioner must prove by a preponderance of the evidence that he or she

is eligible for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369

(AAO 2010). The truth is to be determined not by the quantity of evidence

alone but by its quality. Id. at 376. In the present matter, the documentation

submitted does not demonstrate by a preponderance of the evidence that the

Petitioner meets at least three of the regulatory criteria at 8 C.F.R. § 204.5

(h) (3), and, therefore, that he satisfies the regulatory requirement of three

categories of evidence.

The Petitioner alleges that he "is being treated in a prejudicial fashion by

the Service" in violation of his due process rights. The Petitioner states:

"The RFE [request for evidence] which was issued in this case is dated 18

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__________________________________

July 2014 yet, the very envelope in which these very important documents

were mailed to the undersigned has a postmark of 21 July 2014." The record

reflects that the Director dated-stamped the RFE on Friday, July 18, 2014,

but it was not postmarked until Monday, July 21, 2014. As the RFE was

mailed rather than personally served, the Director afforded the Petitioner

an additional three days in which to submit his response in accordance with

the regulation at 8 C.F.R. § 103.8(b). Page 10 of the RFE stated: "You must

submit the requested information within eighty four (84) days from the date

of this letter (87 days if this notice was received by mail)." As the Petitioner

was afforded an additional three days and his RFE response was timely

received by the Director on October 10, 2014, the Petitioner has not shown

that his ability to file a timely and meaningful response was affected by the

mailing delay of one business day or how the delay demonstrates that he

was treated in a prejudicial fashion by USCIS in violation of his due process

rights.

For the reasons discussed below, we agree that the Petitioner has not

established his eligibility for the exclusive classification sought. …

Had the Petitioner submitted the requisite evidence under at least three

evidentiary categories, in accordance with the Kazarian opinion, the next

step would be a final merits determination that considers all of the evidence

in the context of whether or not the Petitioner has demonstrated: (1) a "level

of expertise indicating that the individual is one of that small percentage

who have risen to the very top of the field of endeavor," and (2) "that the

alien has sustained national or international acclaim and that his or her

achievements have been recognized in the field of expertise." 8 C.F.R. §

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4 We maintain de novo review of all questions of fact

and law. See Soltane v. United States Dep 't of Justice,

381 F.3d 143, 145 (3d Cir. 2004). In any future

proceeding, we maintain the jurisdiction to conduct a

final merits determination as the office that made the last

decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see

also INA§§ 103(a)(l), 204(b); DHS Delegation Number

0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003);

8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19

I&N Dec. 458,460 (BIA 1987) (holding that legacy INS,

now USCIS, is the sole authority with the jurisdiction to

decide visa petitions).

204.5(h) (2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the

Petitioner has not done so, the proper conclusion is that the Petitioner has

failed to satisfy the antecedent regulatory requirement of presenting

evidence that satisfied the initial evidence requirements set forth at 8 C.F.R

§ 204.5(h)(3) and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although

we need not provide the type of final merits determination referenced in

Kazarian, a review of the evidence in the aggregate supports a finding that

the Petitioner has not demonstrated the level of expertise required for the

classification sought. 4 ….

SEP112015_01B2203.pdf

Matter of H-S-, ID# 13009 (AAO Sept. 11, 2015)

District Judge RICHARD A. JONES presided over Rijal

v. USCIS, and he stated that “…USCIS Erred in Its

Determination That Mr. Rijal Had Not Satisfied Any of the

Alternate Evidentiary Criteria.”

“… Both Mr. Rijal and the USCIS often seem to assume that

satisfying three criteria is the end of the "extraordinary ability"

inquiry. They are mistaken. Id. at 1121 (noting that "whether

APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED

The Petitioner, an individual who works in the field of business

development and commercialization, seeks classification as a person "of

extraordinary ability" in business. …

The classification the Petitioner seeks makes visas available to foreign

nationals who can demonstrate their extraordinary ability through sustained

national or international acclaim and whose achievements have been

recognized in their field through extensive documentation. The Director

determined that the Petitioner had not satisfied the initial evidence

requirements set forth at 8 C.F.R § 204.5(h)(3), which requires

documentation of a one-time achievement or evidence that meets at least

three of the ten regulatory criteria.

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petitioner has provided at least three types of evidence" is

merely an "antecedent procedural question").

That mistake is repeated throughout the USCIS's May 2009

decision. For example, the USCIS concluded that that UNICEF

prize was an "internationally recognized award of excellence in

the petitioner's field." AR at 117. Nonetheless, USCIS ruled

that Mr. Rijal had not provided "[d]ocumentation of [his]

receipt of lesser nationally or internationally recognized prizes

or awards for excellence in [his] field of endeavor," 8 C.F.R. §

204.5(h)(3)(i), because, in its view, "[a] single prize, awarded

four years prior . . ., does not provide evidence of the petitioner's

sustained acclaim and is not sufficient to establish that he meets

this criterion." This was an error. The evidentiary criterion does

not require that the "lesser" prize demonstrate sustained

acclaim. It merely requires the receipt of the prize, a showing

that USCIS concedes that Mr. Rijal made. The inquiry into

sustained acclaim is part of the "final merits determination" of

whether the evidence demonstrates extraordinary

ability. Kazarian, 596 F.3d at 1121

******

The submission of evidence relating to at least three criteria, however, does

not, in and of itself, establish eligibility for this classification. See Kazarian

v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review

where the evidence is first counted and then, if satisfying the required

number of criteria, considered in the context of a final merits

determination). See also Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash.

2011) (affirming our proper application of Kazarian), aff'd, 683 F.3d.

1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C.

2013) (finding that we appropriately applied the two-step review); Matter

of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth

is to be determined not by the quantity of evidence alone but by its quality"

and that U.S. Citizenship and Immigration Services (USCIS) examines

"each piece of evidence for relevance, probative value, and credibility, both

individually and within the context of the totality of the evidence, to

determine whether the fact to be proven is probably true").

[Bullshit! Rijal did not affirm proper application! It was harmless error!]

E13, EB-1C CERTAIN MULTINATIONAL EXECUTIVES & MANAGERS

SEP102015_01B4203.pdf

Matter of S-S-, Inc., ID# 13216 (AAO Sept. 10, 2015)

APPEAL OF NEBRASKA SERVICE CENTER DECISION DISMISSED

The Petitioner, an exporter of granite and marble, seeks to classify the

beneficiary as a multinational manager or executive. …

The Director denied the petition on January 13, 2010, concluding that the

Petitioner did not establish that it had been doing business in the United

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States for at least one year prior to the petition's filing date, or that the

Beneficiary's duties, either with his former foreign employer or in the

United States, were in a qualifying managerial or executive capacity.

SEP112015_01B4203.pdf

Matter of C-S-, Inc., ID# (AAO Sept. 11, 2015)

APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED

The Petitioner, a company engaged in software development and sales,

seeks to classify the Beneficiary, its chief executive officer, as a

multinational manager or executive. ….

The Director determined that the record did not establish that the

Beneficiary will be employed in a qualifying managerial or executive

capacity.

On appeal, the Petitioner asserts that the company's small size is not a

disqualifying factor, and that the Beneficiary has contributed to the

beneficiary's growth in his role as its CEO. The Petitioner submits a legal

brief and supporting exhibits.

************

B. Analysis

For the reasons to be discussed below, we find that the Petitioner has not

established that the Beneficiary will be employed in a qualifying

managerial or executive capacity.

The definitions of executive and managerial capacity each have two parts.

First, the petitioner must show that the beneficiary performs the high level

responsibilities that are specified in the definitions. Second, the petitioner

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must prove that the beneficiary primarily performs these specified

responsibilities and does not spend a majority of his or her time on day-to-

day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991

WL 144470 (9th Cir. July 30, 1991).

The Petitioner devotes a considerable portion of the appeal to the assertion

that the company has grown as a result of the Beneficiary's leadership.

Evidence of growth would not, by itself, demonstrate that the Beneficiary

qualifies as a multinational manager or executive. Further, the record does

not support the Petitioner's claim. The Petitioner asserts that the response

to the RFE included "evidence of significant growth of the company." The

record does not support this assertion. ….

SEP112015_02B4203.pdf

Matter of X-D-M-E-, LLC, ID# 13192 (AAO Sept. 11,

2015)

APPEAL OF NEBRASKA SERVICE CENTER DECISION DISMISSED

The Petitioner, a real estate developer, seeks to permanently employ the

Beneficiary under the immigrant classification of multinational executive

or manager. …..

The Director denied the petition on December 15, 2014, concluding that the

Petitioner has not established that the Beneficiary has been or will be

employed in a qualifying managerial or executive capacity.

On appeal, the Petitioner submits a legal brief, supported by copies of

previously submitted materials. The Petitioner contends that the

Beneficiary has worked and will work in a qualifying managerial capacity,

and that the Director's decision is not consistent with the evidence of record.

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EB-2 Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability & Applicant

for a National Interest Waiver (NIW) of Job Offer & PERM Labor Certification

SEP102015_01B5203.pdf

Matter of H-N-N-B-, ID# 14524 (AAO Sept. 10, 2015)

APPEAL OF TEXAS SERVICE CENTER DECISION SUSTAINED

The Petitioner, an individual, seeks classification as a member of the

professions holding an advanced degree. …

The Petitioner seeks employment as an Assistant Professor of Geography

and Geographic Information Science researcher. 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.

**************

The Petitioner filed the Immigrant Petition for Alien Worker (Form I-140)

on March 3, 2014. The Director determined that the Petitioner's impact and

influence on his field did not satisfy the third prong of the NYSDOT

national interest analysis. Regarding his planned research activities, the

Petitioner stated: "I intend to continue my investigations on how we could

improve the methods used to characterize land cover[,] land use[,] and

water resources by integrating geospatial techniques with landscape spatial

complexity metrics and machine learning algorithms."

************

The aforementioned letters of support and extensive citation of the

Petitioner's work by others in the field are sufficient to demonstrate that the

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Petitioner's research has had a degree of influence on the field of geographic

information science. The evidence in the record establishes the significance

of this Petitioner's research, as opposed to the general area of research, and

identifies specific benefits attributable to his work that have influenced the

field as a whole. We therefore find that the Petitioner's past record of

achievement justifies projection that he will serve the national interest to a

significantly greater degree than would an available U.S. worker having the

same minimum qualifications.

SEP112015_01B5203.pdf

This one lipped through the cracks. It was not assigned a

citation spring and is in the old style.

DISCUSSION: The employment-based immigrant visa petition was

denied by the Director, Texas Service Center (Director). It is now on appeal

before the Administrative Appeals Office (AAO). The case will be

remanded to the Director for further consideration and the issuance of a

new decision.

The petitioner describes itself as a staffing and recruitment company. …

**************

The petition is for a Schedule A occupation. A Schedule A occupation is

one codified at 20 C.F.R. § 656.5(a) for which the U.S. Department of

Labor (DOL) has determined that there are not sufficient U.S. workers who

are able, willing, qualified and available, and that the wages and working

conditions of similarly employed U.S. workers will not be adversely

affected by the employment of aliens in such occupations. The current list

of Schedule A occupations includes professional nurses. Id. "Professional

nurse" is defined in 20 C.F.R. § 656.5(a)(3)(ii) as follows:

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Professional nurse means a person who applies the art and science

of nursing which reflects comprehension of principles derived from

the physical, biological and behavioral sciences. Professional

nursing generally includes making clinical judgments involving the

observation, care and counsel of persons requiring nursing care;

administering of medicines and treatments prescribed by the

physician or dentist; and participation in the activities for the

promotion of health and prevention of illness in others. A program

of study for professional nurses generally includes theory and

practice in clinical areas such as obstetrics, surgery, pediatrics,

psychiatry, and medicine.

Petitions for Schedule A occupations do not require the petitioner to test

the labor market and obtain a certified ETA Form 9089 from· the DOL

prior to filing the petition with U.S. Citizenship and Immigration Services

(USCIS). Instead, the petition is filed directly with USCIS with an

uncertified ETA Form 9089 in duplicate. See 8 C.F.R. §§ 204.5(a)(2) and

(k)(4); see also 20 C.F.R. § 656.15.1

___________________

1 The instant petition was filed without the requisite ETA Form 9089. The

petitioner furnished an uncertified ETA Form 9089 in duplicate on July 26,

2013, in response to the Director's Notice of Intent to Deny (NOID) the

petition.

*************

The Director concluded that the proffered position, because of its

supervisory elements, cannot be considered a Schedule A occupation.

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Accordingly, the petition could not be approved in the absence of a DOL-

certified ETA Form 9089. The petitioner filed a timely appeal on

September 12, 2013, accompanied by a brief from counsel and supporting

documentation.

The petitioner asserts that the Director erred in finding that the proffered

nursing position is not a Schedule A occupation simply because there are

supervisory components in the job. According to the petitioner, the practice

of "registered nursing" includes supervision and management.

****************

In reviewing the decision, we find that the job description might be

reviewed in consideration of specific duties to determine whether such

duties may be encompassed within the definition of a professional nurse.

The Director may wish to issue a Request for Evidence to obtain further

information about the issue and the issues identified below, allowing the

petitioner a reasonable time to respond. Accordingly, this petition will be

remanded to the Director for further review. The Director should take into

consideration any materials submitted by the petitioner in response to any

request. The Director shall then issue a new decision.

EB-3 PROFESSIONAL or SKILLED WORKERS or OTHER WORKERS

SEP152015_01B6203.pdf

Matter of V-B-H-S-, ID# 13157 (AAO Sept. 15, 2015)

APPEAL OF NEBRASKA SERVICE CENTER DECISION REMANDED

The Petitioner, a healthcare business, seeks to permanently employ the

Beneficiary in the United States as a registered nurse for immigrant

classification as a professional. ….

The petition is for a Schedule A occupation. ….

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SEE: Matter of Dial Auto Successor-In-Interest Test

The petition was initially filed on September 12, 2006 and approved on July

2, 2007. On October 14, 2014, the Director issued a notice of intent to

revoke (NOIR) the approval of the petition because information indicated

that a change in business structure may have occurred. On December 25,

2014, the Director revoked the approval of the petition, noting that no

response was received to the NOIR and that according to 9 FAM (Foreign

Affairs Manual) 40.51 N4.6-1, a new Form I-140 should have been filed

due to the buyout or merger of your organization with another company.

You appealed this decision to the Administrative Appeals Office (AAO).

*******

First, we note that the Petitioner asserts it did not receive the Director's

NOIR and the record indicates that this NOIR was sent to the Petitioner's

former counsel. See Matter of Arias, 19 I&N Dec. 568 (BIA 1988) and

Matter of Estime, 19 I&N Dec. 450 (BIA 1987). The record also indicates

that the Director then issued the Petitioner another NOIR to the Petitioner's

former counsel on December 23, 2014, giving the Petitioner 30 days to

respond. However, the Director issued the decision revoking the approval

of the petition on December 25, 2014, to the Petitioner's current counsel

two days after the NOIR was resent to the Petitioner on December 23, 2014.

Therefore, the matter will be remanded to the Director to reissue a notice

of intent to revoke and allow the Petitioner and current counsel an

opportunity to respond.

Second, related to the question of successorship, the record does not fully

document the nature of the buyout and the restructuring that took place

relating to the Petitioner's parent company. USCIS has not issued

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regulations governing immigrant visa petitions filed by a successor-in-

interest employer. Instead, such matters are adjudicated in accordance with

Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986)

("Matter of Dial Auto") a binding, legacy Immigration and Naturalization

Service (INS) decision that was designated as a precedent by the

Commissioner in 1986. Considering Matter of Dial Auto and the generally

accepted definition of successor-in-interest, a petitioner may establish a

valid successor relationship for immigration purposes if it satisfies three

conditions. · First, the petitioning successor must fully describe and

document the transaction transferring ownership of all, or a relevant part

of, the beneficiary's predecessor employer. Second, the petitioning

successor must demonstrate that the job opportunity is the same as

originally offered on the labor certification.

Third, the petitioning successor must prove by a preponderance of the

evidence that it is eligible for the immigrant visa in all respects. The record

does not contain sufficient evidence establishing the details of the buyout

to demonstrate whether it resulted in either: (1) a change in the Petitioner's

name but not a change in the Petitioner's Employer Identification Number

(EIN); or (2) an organizational change and a change in EIN that would give

rise to a successorship, or multiple successor issues.

SPECIAL IMMIGRANT RELIGIOUS WORKER

SEP112015_01C1101.pdf

Matter of C-S-C-, ID# 13817 (AAO Sept. 11, 2015)

APPEAL OF CALIFORNIA SERVICE CENTER DECISION SUSTAINED

The Petitioner, a church, seeks to employ the Beneficiary as a special

immigrant religious worker to perform services as a Mennonite school

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teacher at one of its private schools. See Immigration and Nationality Act

(the Act) § 203(b)(4), 8 U.S.C. § 1153(b)(4). The Director, California

Service Center, denied the petition, finding that the Petitioner did not

establish that the proffered position qualifies as a religious occupation. ….

Section 203(b)(4) of the Act, 8 U.S. C. § 1153(b)(4), provides classification

to qualified special immigrant religious workers as described in section

101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), ….

We find that the record in this case, as a whole, supports [Petitioner’s]

contention that teaching in their religious school is an activity considered

by the church to constitute the practice of religion and that educating their

children is considered a sacred religious duty within the church.

Considering the curriculum and lesson plans submitted, in conjunction with

the church's prioritization of a private school for all of its children to the

extent that most of its congregations operate their own religious school that

are entirely staffed by church members, we conclude that the proffered

position involves duties primarily related to a traditional religious function

and involves carrying out the religious beliefs of the Mennonite religion.

Further, the record shows that being a Mennonite school teacher is

recognized as a religious occupation within the denomination. The duties

of the position primarily relate to, and clearly involve, inculcating or

carrying out the beliefs of the Mennonite religion. Accordingly, the

Petitioner has established that the proffered position is a religious

occupation as defined in 8 C.F.R. § 204.5(m)(5).

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In sum, the Petitioner has demonstrated that the proffered position of

Mennonite school teacher qualifies as a religious occupation as defined in

8 C.F.R. § 204.5(m)(5). With respect to the Petitioner's assertion that USC

IS has been inconsistent in granting and denying petitions with the identical

proffered position, we note that each petition is considered on a case-by-

case basis and this decision should not be interpreted to be a blanket holding

that being a Mennonite school teacher is a religious occupation. In addition,

USCIS is not required to approve applications or petitions where eligibility

has not been demonstrated, merely because of prior approvals that may

have been erroneous. See, e.g Matter ofChurch Scientology International,

19 I&N Dec. 593,597 (Comm'r 1988).

This compilation is only accurate as of date and time of posting.