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SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 1
EB-2 NIW non-precedent AAO Decisions
Aug122010_01B5203.pdf
Aug042010_02B5203.pdf
Aug032010_03B5203.pdf
Aug032010_02B5203.pdf
Jul082010_06B5203.pdf [Unauthorized practitioner was reported.]
May062010_01B5203.pdf
―We concur with the director's finding that the petitioner works in an area of
intrinsic merit, biomaterials and orthopaedics, and that the proposed benefits
of her work, research advancements in bone tissue engineering, would be
national in scope. It remains, then, to determine whether the petitioner will
benefit the national interest to a greater extent than an available U.S. worker
with the same minimum qualifications.
Eligibility for the waiver must rest with the alien's own qualifications rather
than with the position sought. In other words, we generally do not accept the
argument that a given project is so important that any alien qualified to work
on this project must also qualify for a national interest waiver. Id. At 218.
Moreover, it cannot suffice to state that the alien possesses useful skills, or a
"unique background." Special or unusual knowledge or training does not
inherently meet the national interest threshold. The issue of whether
similarly-trained workers are available in the United States is an issue under
the jurisdiction of the Department of Labor.
Id. at 221.
At issue is whether this petitioner's contributions in the field are of such
unusual significance that the petitioner merits the special benefit of a
national interest waiver, over and above the visa classification he seeks. By
seeking an extra benefit, the petitioner assumes an extra burden of proof. A
petitioner must demonstrate a past history of achievement with some degree
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 2
of influence on the field as a whole. Id. at 219, n. 6. In evaluating the
petitioner's achievements, we note that original innovation, such as
demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case
basis. Id. at 221, n. 7.‖
May052010_03B5203.pdf
Apr302010_02B5203.pdf
Apr302010_01B5203.pdf
Apr292010_02B5203.pdf
Apr292010_01B5203.pdf [Not NIW but contains a detailed discussion about the
material change prohibition.]
―The AAO will affirm the director's denial and dismiss the appeal. Upon
review, the director's decision was proper under the law and regulations. As
will be discussed in detail, a petitioner may not make material changes to a
petition after adjudication in order to establish eligibility. Additionally, the
Act prohibits U.S. Citizenship and Immigration Services (USCIS) from
providing a petitioner with multiple adjudications for a single petition with a
single fee. The petitioner claims that it erroneously requested classification
of an RFIC design engineer as a member of the professions holding an
advanced degree or an alien of exceptional ability.‖ At p. 2.
*****
―On January 17, 2008, the director denied the petition finding that the
petitioner incorrectly indicated that the position requires work from a
member of the professions holding an advanced degree or an alien of
exceptional ability. The director highlighted the fact that the petitioner listed
on the labor certification that the beneficiary's progressive experience could
have taken place "pre or post degree." As the petitioner accepts experience
gained prior to the obtainment of a bachelor's degree in combination with a
bachelor's degree, the offered position is not a job that requires a
professional holding an advanced degree or the equivalent or an alien of
exceptional ability.
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 3
On appeal, the petitioner submitted a brief stating that the petitioner did
check box d on Part 2 of the Form 1-140 because it intended to state on the
labor certification that the beneficiary's progressive experience could have
taken place pre or post his master's degree, not pre or post his bachelor's
degree. In the alternative, counsel asserts that USCIS may change the
classification to being for a professional or skilled worker. As discussed, the
Form 1-140 petition was clearly marked under Part 2 as a petition filed for
classification as a member of the professions holding an advanced degree or
an alien of exceptional ability. The petitioner signed the Form 1-140 petition
under penalty of perjury, attesting that the information on the form was
correct. As the petition was unaccompanied by instructions from the
petitioner specifying otherwise, the director properly adjudicated the petition
pursuant to section 203(b)(2) of the Act. Since the director's decision was
not in error, the petitioner is precluded from requesting a change of
classification on appeal. A request for a change of classification will not be
entertained for a petition that has already been adjudicated. A post
adjudication alteration of the requested visa classification constitutes a
material change. A petitioner may not make material changes to a petition in
an effort to make a deficient petition conform to USCIS requirements. See
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm’r. 1998).
The initial filing fee for the Form 1-140 petition covered the cost of the
director's adjudication of the Form 1-140 petition. Pursuant to section
286(m) of the Act, 8 U.S.C.§ 1356, USCIS is required to recover the full
cost of adjudication. In addition to the statutory requirement, Office of
Management and Budget (OMB) Circular A-25 requires that USCIS recover
all direct and indirect costs of providing a good, resource, or service.' If the
petitioner now seeks to classify the beneficiary as a professional pursuant to
section 203(b)(3)(A)(i) of the Act, then it must file a separate Form 1-140
petition requesting the new classification. On appeal, the petitioner has cited
no statute, regulation, or standing precedent that permits a petitioner to
change the classification of a petition once a decision has been rendered by
the director.
In this matter, the petitioner's appellate submission did not address the
beneficiary's eligibility pursuant to section 203(b)(2) of the Act. With regard
to regulatory requirements at 8 C.F.R. 204.5(1), the petitioner has not
specifically challenged the reasons stated for denial and has not provided
any additional evidence to overcome the director's decision.
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 4
Review of the record does not establish that the beneficiary is a member of
the professions holding an advanced degree or an alien of exceptional
ability. Therefore, the petitioner has not established the beneficiary's
eligibility pursuant to section 203(b)(2) of the Act, and the petition may not
be approved.‖ At pp. 3-4.
Apr282010_03B5203.pdf
―The application for the national interest waiver cannot be approved. The
regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply
for the [national interest] exemption the petitioner must submit Form ETA-
750B, Statement of Qualifications of Alien, in duplicate." The petitioner
failed to submit this document or comparable portions of its successor form,
ETA Form 9089. Accordingly, by regulation, the petitioner cannot be
considered for a waiver of the job offer requirement. The director,
however, does not appear to have informed the petitioner of this critical
omission. Below, we shall consider the merits of the petitioner's national
interest claim.‖ At p. 3.
*****
―We note that citations are not the only means by which to show the
petitioner's impact on his field. Reference letters from independent experts
in the field can also play a significant role in this respect. For example,
letters from independent references who were previously aware of the
petitioner through his reputation and who have applied his work are far more
persuasive than letters from his immediate colleagues and coauthors. Here,
however, the petitioner has not submitted any letters from independent
references who provide specific examples of how his work has significantly
influenced his field or has been applied by others to an extent that justifies a
waiver of the job offer requirement.‖ At p. 6.
For an agency that routinely places more stock and value in its own regulations
than the statutes that underlie them, it is refreshing to see AAO take the above
stand. This is a clear change since USCIS underwent a change in leadership. I
must ask, IF the case had been approvable on the merits, would AAO have
remanded in order for the Service Center to correct the deficiencies? I would have
to answer that in the affirmative.
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 5
In stark contrast to the generosity shown above (in the Apr28 case), the following
case is more like the USCIS we all know best. I can’t blame them for taking the
stances that they take from one case to the next simply because each case is unique
unto itself. Incompetent and skeletal filings don’t deserve a break. Think about it!
On the one hand, someone is saying “Look at me! I’m so exceptional and special
that I think I qualify for a National Interest Waiver!” Then they fail to comply with
the filing instructions. What would you think? What would you do? Would you
issue an RFE for the initial required evidence that this GENIUS failed to include?
I would not have done anything different.
Apr272010_04B5203.pdf
―On appeal, counsel argues that the petitioner "has demonstrated that she
qualifies for a waiver of the requirement of a job offer and labor
certification." Counsel further argues that the director erred by failing to
request further evidence before denying the petition. The regulation at 8
C.F.R. § 103.2(b)(8)(ii) provides:
If all required initial evidence is not submitted with the application or
petition or does not demonstrate eligibility, USCIS [U.S. Citizenship
and Immigration Services] in its discretion may deny the application
or petition for lack of initial evidence or for ineligibility or request
that the missing initial evidence be submitted within a specified period
of time as determined by USCIS.
The director is not required to issue a request for further information in
every potentially deniable case. If the director determines that the record
lacks initial evidence or does not demonstrate eligibility, the cited regulation
does not require solicitation of further documentation. With regard to
counsel's concern, it is not clear what remedy would be appropriate beyond
the appeal process itself. The petitioner has in fact supplemented the record
on appeal, and therefore it would serve no useful purpose to remand the case
simply to afford the petitioner the opportunity to supplement the record with
new evidence.‖ At p. 2.
Apr272010_05B5203.pdf
Apr272010_03B5203.pdf [Moot. Already adjusted by other means that the instant
petition.]
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 6
Apr272010_02B5203.pdf [Another discussion on the material change prohibition.]
Apr222010_04B5203.pdf [Not a NIW case but is included for discussion of G-28
issues.]
Apr222010_03B5203.pdf
Apr162010_02B5203.pdf [Hospital dietician found not worthy of a NIW. What a
shock!]
Apr162010_01B5203.pdf
Apr152010_01B5203.pdf [Not a NIW case but has a great footnote.]
―The submission of additional evidence on appeal is allowed by the instructions to
Form I-290B,which are incorporated into the regulations by 8 C.F.R. §103.2(a)(l).
The record in the instant case provides no reason to preclude consideration of any
of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec.
764 (BIA 1988).”
Apr132010_06B5203.pdf [Petitioner and counsel confused the Physician specific
NIW created in 1999 and the ―other‖ NIW which existed before that last legislative
change, as described in NYSDOT (AAO 1998). AAO addresses this at length.]
―On appeal, counsel asserts that additional evidence or a brief would be filed
within 30 days. Counsel dated the appeal July 15, 2009. As of this date,
more than eight months later, this office has received nothing further. Thus,
the appeal will be adjudicated based on the assertions stated on the Form I-
290B, Notice of Appeal or Motion. For the reasons discussed below, we
affirm the director's decision that the petitioner has not demonstrated
eligibility for the benefit sought. Specifically, as will be explained in detail
below, relevant precedent provides three factors that must be considered.
The petitioner, however, relies on the first factor, the substantial intrinsic
merit of his work, in combination with a claimed shortage (which falls under
the jurisdiction of the Department of Labor) to meet the other two unrelated
factors. As will be explained below, this approach is not consistent with
relevant precedent.‖ At p. 2.
*****
―Throughout the proceeding, counsel has asserted that the petitioner works
in an "underserved" area and has performed services at the Veterans Affairs
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 7
Medical Center although there is no evidence he is actually employed there
or that he has an offer to continue working there. Section 203(b)(2)(B)(ii) of
the Act provides for a waiver of the alien employment certification in the
national interest for an "alien physician" who agrees to work full time as a
physician in areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals or at a health care
facility under the jurisdiction of the Secretary of Veterans Affairs.
The regulation at 8 C.F.R. § 204.12(a) confirms that "alien physician"
includes only doctors of medicine and doctors of osteopathy. The petitioner
is a doctor of dental surgery. ...‖ At p. 3.
*****
―.... In 1999, Congress amended section 203(b)(2)(B) of the Act in direct
response to NYSDOT. Congress, at that time, could have taken any number
of actions to limit, modify, or completely reverse the precedent decision.
Instead, Congress let the decision stand, apart from a limited exception for
certain physicians, as described in section 203(b)(2)(B)(ii) of the Act.
Congress did not include doctors of dental surgery under this law. Because
Congress has made no further statutory changes in the decade since
NYSDOT, we can presume that Congress has no further objection to the
precedent decision, including the requirement that the proposed benefits be
national in scope for everyone other than alien physicians.‖ At p. 4.
Footnotes 2-4 at the bottom of page 6: 2
As stated above, Congress did amend the Act to facilitate waivers for certain alien
physicians. Section 203(b)(2)(B)(ii). This amendment demonstrates Congress'
willingness to modify the national interest waiver statute in response to NYSDOT; the
narrow focus of the amendment implies (if only by omission) that Congress, thus far, has
seen no need to modify the statute further in response to the precedent decision.
3 In fact, at least two federal district court decisions have upheld the decision. See
Gennadi Mikhailik v.Alberto Gonzalez, No. C 04-0904 FMS (N. D. Calif. May 4, 2005)
(holding that the factors set forth in NYSDOT "provide a reasonable interpretation of what
Congress intended when it created the national interest waiver." See also Talwar v. INS,
2001 WL 767018 (S.D.N.Y. July 9, 2001) (holding that NYSDOT is a "reasonable and
predictable interpretation" of the statute).
4 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d , 905 F.
2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5
(S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc.
v. The Attorney General of the United States, 745 F. Supp. (D.C. Dist. 1990).
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 8
Apr132010_01B5203.pdf [Contains in-depth analysis of the evidence.]
―On appeal, counsel submits evidence about the reputation of the petitioner's
employer. Nothing in the statute, regulations or NYSDOT, 22 I&N Dec. at
215 suggests that there are employers whose reputations alone warrant a
waiver of the alien employment certification process for every alien they
wish to hire. We are not persuaded that Congress intended the waiver as a
blanket waiver for every distinguished employer.‖ At p. 4.
*****
―At issue is whether this petitioner's contributions in the field are of such
unusual significance that the petitioner merits the special benefit of a
national interest waiver, over and above the visa classification he seeks. By
seeking an extra benefit, the petitioner assumes an extra burden of proof. A
petitioner must demonstrate a past history of achievement with some degree
of influence on the field as a whole. Id. at 219, n. 6. In evaluating the
petitioner's achievements, we note that original innovation, such as
demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case
basis. Id at 221, n. 7.‖ At p. 4.
Mar312010_01B5203.pdf [Dissects the testimonial letters of support, in-depth.]
Mar262010_05B5203.pdf
―On appeal, counsel submits a brief primarily asserting that the director
placed too much reliance on the small number of citations of the petitioner's
work and failed to consider the reference letters. For the reasons discussed
below, including an in-depth discussion of the reference letters, we uphold
the director's decision.‖ At p. 2.
*****
―At the outset, we note that the petitioner must establish her eligibility as of
the date of filing, in this case June 22, 2006. See 8 C.F.R. §§ 103.2(b)(l),
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). In this
matter, that means that he must demonstrate her track record of success with
some degree of influence on the field as a whole as of that date. All of the
case law on this issue focuses on the policy of preventing petitioners from
securing a priority date in the hope that they will subsequently be able to
demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160
(Reg'l. Comm'r. 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also
Matter of Izummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) (citing Matter
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 9
of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1) for the proposition that we
cannot "consider facts that come into being only subsequent to the filing of a
petition.") Consistent with these decisions, a petitioner cannot secure a
priority date in the hope that her as of yet unpublished or recently published
research will subsequently prove influential. Ultimately, in order to be
meritorious in fact, a petition must meet the statutory and regulatory
requirements for approval as of the date it was filed. Ogundipe v. Mukasey,
541 F.3d 257, 261 (4th Cir. 2008). Thus, we will only consider evidence
relevant to the petitioner's eligibility as of that date.‖ At p. 4.
Mar262010_03B5203.pdf [EVERYONE MUST READ THIS
DECISION!]
If you want to seek an EB-2 NIW as an IMMIGRATION LAWYER,
don’t misquote an obsolete section of 8 CFR and refer to as the INA!
―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 we have
done above, evaluate the content of those letters as to whether they support
the alien's eligibility. See id. at 795. USCIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any
way questionable. Id. at 795; see also 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)).
For reasons discussed above, the letters submitted on appeal are vague,
uncorroborated, and/or irrelevant to the proceeding at hand.‖ At p. 7.
Mar262010_02B5203.pdf
―As previously discussed, the petitioner checked box "if' at Part 2 of the
Form 1-140 petition, indicating that the petitioner sought a national interest
waiver requesting to classify the beneficiary as a member of the professions
holding an advanced degree or an alien of exceptional ability. The petitioner
also signed the Form 1-140 under penalty of perjury, certifying that "this
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 10
petition and the evidence submitted with it are all true and correct." The
individual who signed Form 1-140, [NAME REDACTED] repeatedly
referred to the waiver in her letter accompanying the initial filing. There is
no credible evidence that the petitioner simply "checked the wrong box."
Rather, the record indicates that the petitioner deliberately sought the
waiver, but then changed its mind upon learning the caliber of evidence
required to show the beneficiary's eligibility for the waiver.
The Ninth Circuit has determined that once USCIS concludes that an alien is
not eligible for the specifically requested classification, the agency is not
required to consider, sua sponte, whether the alien is eligible for an alternate
classification. Brazil Quality Stones, Inc., v. Chertoff, 286 Fed. Appx. 963
(9th
Cir. July 10, 2008). While the petitioner, here, does not seek an entirely
different classification for the beneficiary, the petitioner nevertheless seeks a
fundamental readjudication of the petition on a comparable scope.
Moreover, USCIS is statutorily prohibited from providing a petitioner with
multiple adjudications for a single petition with a single fee. The initial filing
fee for the Form 1-140 covered the cost of the director's adjudication of the
1-140 petition with a request for the national interest waiver. Pursuant to
section 286(m) of the Act, 8 U.S.C. § 1356, USCIS is required to recover the
full cost of adjudication. In addition to the statutory requirement, Office of
Management and Budget (OMB) Circular A-25 requires that USCIS recover
all direct and indirect costs of providing a good, resource, or service.1 If the
petitioner seeks adjudication of the petition with a labor certification, then
the petitioner must file a separate Form 1-140 petition, with the
accompanying fee and an approved labor certification, requesting that
adjudication.
Furthermore, even if we were to entertain a change of adjudication at this
late date, we would have to find, also, that the petition was not properly
filed. When a petition involves a labor certification, the approved labor
certification must accompany the initial filing of that petition. See 8 C.F.R. §
204.5(a)(2). The filing date of the application for labor certification
determines the petition's priority date. See 8 C.F.R. § 204.5(d). If a petition
that requires an accompanying labor certification is filed without that labor
certification, the petition cannot be approved, and a denial on that ground
cannot be appealed. See 8 C.F.R. § 103.1 (f)(3)(iii)(B)(as in effect on
February 28,2003).
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 11
While the petitioner, on appeal, contends that it had applied for the waiver
essentially by mistake, the petitioner also attempts to address the guidelines
in Matter of New York State Dept. of Transportation. The petitioner submits
documentation of the beneficiary's participation in professional conferences
and other evidence of his continuing work in his field. The petitioner,
however, had already forfeited its opportunity to submit evidence in support
of the waiver claim.‖ At p.6.
Foot note in original: 1 See http://www.whitehouse.gov/omb/circulars/a025/a025.html
Mar262010_01B5203.pdf [Not NIW but included for a procedural clarification.]
Mar252010_06B5203.pdf
Mar252010_04B5203.pdf
Mar162010_04B5203.pdf
Mar162010_03B5203.pdf [See how NOT to present a case. Scatter-brained comes
to mind.]
Mar162010_01B5203.pdf
Mar152010_14B5203.pdf
―In evaluating the reference letters, we note that letters containing mere
assertions of industry interest and positive response in the field are less
persuasive than letters that provide specific examples of how the petitioner
has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have
applied his work are far more persuasive than letters from independent
references who were not previously aware of the petitioner and are merely
responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.‖ At p. 9.
Mar152010_13B5203.pdf
Footnote #1: On the Form 1-140 petition, the petitioner is listed as the State
University of New York, College of Optometry. The petition, however, is signed
by the beneficiary as the self-petitioner.
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 12
Mar152010_12B5203.pdf
Mar152010_11B5203.pdf
Mar152010_05B5203.pdf
Mar152010_03B5203.pdf
Mar152010_02B5203.pdf
Mar152010_01B5203.pdf
Mar122010_03B5203.pdf [Good example of dissection of the evidence, criterion
by criterion and explaining when ―comparable evidence‖ may be considered.]
―The director, in denying the petition, found that "the beneficiary's
occupation . . . readily lends itself to the type of regulatory evidence to meet
the [standard] criteria."
On appeal, counsel argues that the witness letters represent "comparable
evidence" "because these statements represented strong, first hand proof of
the exceptional attributes that [the beneficiary] brings to her position."
Counsel does not explain why the standards at 8 C.F.R. 5 204.5(k)(3)(ii) do
not readily apply to the beneficiary's occupation, which is the only
circumstance that permits consideration of "comparable evidence." Counsel
denies that the petitioner is "seeking to substitute other, less probative
evidence" in place of "objective evidence that we failed to submit," but the
fact remains that the petitioner did not submit sufficient objective evidence
to establish eligibility, and seeks to fill the gap with other evidence that falls
outside the regulatory guidelines.
We agree with the director's finding that the standards listed at 8 C.F.R. §
204.5 (k)(3)(ii) readily apply to the beneficiary's occupation, and therefore
the petitioner's occupation does not trigger the "comparable evidence" clause
at 8 C.F.R. § 204.5(k)(3)(iii).
In this instance, the petitioner has already claimed at various times that the
beneficiary satisfies three of the six standards, and at least two others appear
to apply to the occupation as well (8 C.F.R. §§ 204.5(k)(3)(ii)(B) and (D),
which relate, respectively, to length of experience and compensation). If the
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 13
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) readily apply to the
beneficiary's occupation – which appears to be the case here – then the
petitioner cannot arbitrarily substitute new criteria tailored to the
beneficiary's strengths simply because the beneficiary cannot meet the
standard criteria. Furthermore, the "comparable evidence" must, itself,
establish that the beneficiary's expertise significantly exceeds that ordinarily
encountered in her occupation.‖ At p. 7-8.
Mar112010_01B5203.pdf
Mar052010_01B5203.pdf
―This denial is without prejudice to the filing of a new petition by a United
States employer accompanied by an alien employment certification certified
by the Department of Labor, appropriate supporting evidence and fee.‖
At p. 10.
Feb232010_04B5203.pdf [Merely running website—not necessarily a profession.
Complete dissection of the evidence requirements, criterion by criterion and
explaining when ―comparable evidence‖ may be considered.]
―It remains, then, to determine whether the petitioner will benefit the
national interest to a greater extent than an available U.S. worker with the
same minimum qualifications. On appeal, the petitioner notes that he would
be self-employed and would not be replacing an available U.S. worker.
U.S. Citizenship and Immigration Services (USCIS) acknowledges that there
are certain occupations wherein individuals are essentially self-employed,
and thus would have no U.S. employer to apply for an alien employment
certification. While this fact will be given due consideration in appropriate
cases, the inapplicability or unavailability of an alien employment
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. Id. At 218, n. 5. We note that Congress did create a
separate visa category for alien entrepreneurs, set forth at section
203(b)(5) of the Act, through which an alien must invest at least
$500,000 (depending on the location) and create at least 10 jobs.
Entrepreneurs are not precluded from seeking classification under
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 14
section 203(b)(2) of the Act pursuant to the national interest waiver. As
Congress has identified the type of entrepreneurs it wishes to admit into
the United States, however, entrepreneurship in and of itself is not a
basis for a national interest waiver.
Eligibility for the waiver must rest with the alien's own qualifications rather
than with the position sought. In other words, we generally do not accept the
argument that a given project is so important that any alien qualified to work
on this project must also qualify for a national interest waiver. NYSDOT, 22
I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses
useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of
whether similarly-trained workers are available in the United States is an
issue under the jurisdiction of the Department of Labor. Id. at 221.
At issue is whether this petitioner's contributions in the field are of such
unusual significance that the petitioner merits the special benefit of a
national interest waiver, over and above the visa classification he seeks. By
seeking an extra benefit, the petitioner assumes an extra burden of proof. A
petitioner must demonstrate a past history of achievement with some degree
of influence on the field as a whole. Id. at 219, n. 6. We acknowledge that
the record contains a patent application filed by the petitioner and his RFID
grant proposal. In evaluating the petitioner's achievements, we note that
original innovation, such as demonstrated by a patent, is insufficient by
itself. Whether the specific innovation serves the national interest must be
decided on a case-by-case basis. Id. At 221, n.7.‖ At p. 8. [Emphasis
added.]
*****
―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 evaluate the
content of those letters as to whether they support the alien's eligibility. See
id. at 795. USCIS may even give less weight to an opinion that is not
corroborated, in accord with other information or is in any way questionable.
Id. at 795; see also 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)).‖ At p. 9.
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 15
Feb232010_02B5203.pdf [Procedural technicality will not be overlooked.]
Feb232010_01B5203.pdf
Feb122010_02B5203.pdf
Feb012010_04B5203.pdf
Feb012010_03B5203.pdf
Feb012010_01B5203.pdf
Jan272010_01B5203.pdf [Just because you can appeal does not mean that you
must, or even should. AAO is within its rights and indeed, its legal obligation, to
censure and/or report counsel who take advantage of desperate clients by filing
inadequate or frivolous appeals or motions that have no a chance of success on the
merits.]
―Counsel did not elaborate on his argument, cite to specific errors on the part
of the director or describe any evidence the director allegedly failed to
analyze. Moreover, counsel failed to provide any new evidence on appeal. In
fact, counsel, in his appeal letter, "respectfully again point(s) to the evidence
initially submitted with the original filing as well as with the response to the
request for evidence" in an attempt to overturn the denial. Accordingly, the
record is considered to be complete as it now stands.‖ At p. 2.
This decision like oh so many others stands for the proposition that a proper
Appeal or Motion to Reconsider should be submitted along with a clear
statement and/or brief identifying specifically any erroneous conclusion of law or
statement of fact, along with legal references, and/or identifying the evidence that
one believes was misinterpreted with an explanation of the facts as the appellant
and/or counsel interprets them. In addition, it is noted that an Appeal or Motion
to Reopen could alternatively provide new evidence that could not be submitted
previously or that which the petitioner or applicant was never put on notice to
supply.
Jan262010_08B5203.pdf
―The director did not dispute that the petitioner qualifies as a member of the
professions holding an advanced degree. The petitioner claims eligibility for
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 16
classification as an alien of exceptional ability in the sciences. The record
readily establishes that the petitioner, whose occupation requires at least a
bachelor's degree and who holds a doctoral degree, qualifies as a member of
the professions holding an advanced degree. A determination regarding the
petitioner's claim of exceptional ability would be moot; it would occupy
significant space in this decision, without affecting the ultimate outcome
thereof.‖ At p. 2.
In that one may qualify for a National Interest Waiver (NIW) after first being
found basically eligible for the underlying classification (EB-2), AND that base
finding may be either as a professional with an advanced degree OR of
exceptional ability (EA), people sometimes inappropriately conflate or
outright confuse the eligibility requirements of EA and NIW. This case is an
example of that. Qualifying as an alien of exceptional ability is one of the
possible threshold requirements that must be met BEORE delving into the
qualifications for the National Interest Waiver.
Jan262010_07B5203.pdf [The last prong of the NYSDOT test is the most difficult
to prove.]
―The intrinsic merit and national scope of fuel cell technology are not in
dispute here. Such technology could lead to abundant, clean energy that
would help to solve many of the environmental, economic, and even
political issues that arise from our present reliance on fossil fuels. At the
same time, however, the petitioner's involvement in fuel cell research is not,
by itself, an automatic basis of eligibility. The petitioner must also establish
that his impact and influence in that specialty sets him apart from his peers.
The petitioner must show not only that fuel cell research is in the national
interest, but also that it is in the national interest to ensure the petitioner's
continued work in the field in the United States.‖ At p. 4.
Jan262010_06B5203.pdf [It is becoming abundantly clear to me that ―postdoctoral
fellows or researchers‖ and ―graduate or post-graduate researchers‖ and similar job
classifications are becoming as common as MBAs and almost just as difficult to
justify and qualify for a NIW. Dime-a-dozen folks get lost in the crowd and only
the brightest shining stars will gain attention and be found eligible for a NIW.]
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 17
Jan252010_03B5203.pdf [Misfiled EB-5, I-526 denial dismissed on appeal.]
―The director determined that the evidence submitted to establish the lawful
source of the petitioner's investment could not be deemed credible in light of
an outstanding warrant for the petitioner in Taiwan alleging breach of trust
and diversion of funds.‖ At p. 2.
Jan252010_02B5203.pdf Appeal Sustained
Jan222010_03B5203.pdf
Jan222010_02B5203.pdf
―On appeal, counsel asserts that the petitioner's advanced training in
molecular biology makes him irreplaceable on the projects for which he now
works. Regardless of the alien's particular experience or skills, even
assuming they are unique, the benefit the alien's skills or background will
provide to the United States must also considerably outweigh the inherent
national interest in protecting U.S. workers through the labor certification
process. Id”. At p. 4.
Jan202010_01B5203.pdf [G-28 was a forgery! The REAL attorney is a victim of
identity theft!]
Jan132010_01B5203.pdf [Another misfiled EB-5 case. Dates 1996-1998 and
involves revocation. Now, moot. Already an LPR.]
Jan122010_02B5203.pdf [Another forged G-28!]
Jan122010_01B5203.pdf [Another forged G-28!]
Jan112010_01B5203.pdf [Another forged G-28!]
Jan082010_06B5203.pdf
―While cardiac treatment as a whole serves the national interest, using the
reasoning quoted above, the impact of a single cardiologist at the national
level is negligible. Significantly, Congress is presumed to be aware of
existing administrative and judicial interpretation of statute when it reenacts
a statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978). In this instance,
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 18
Congress' awareness of NYSDOT is a matter not of presumption, but of
demonstrable fact. In 1999, Congress amended section 203(b)(2) of the Act
in direct response to the 1998 precedent decision. Congress, at that time,
could have taken any number of actions to limit, modify, or completely
reverse the precedent decision, such as by applying the waiver to all
physicians practicing in a complicated specialty. Instead, Congress let the
decision stand, apart from a limited exception for certain physicians working
in shortage areas, as described in section 203(b)(2)(B)(ii) of the Act. The
petitioner does not seek a waiver under this provision. Because Congress has
made no further statutory changes in the decade since NYSDOT, we can
presume that Congress has no further objection to the precedent decision.
Nevertheless, the petitioner is involved in ongoing clinical research that he
publishes and presents at conferences. There is no evidence that he seeks to
abandon his clinical research to work solely as a physician. Thus, we are
satisfied that the proposed benefits of his research would be national in
scope.
It remains, then, to determine whether the petitioner will benefit the national
interest to a greater extent than an available U.S. worker with the same
minimum qualifications. Counsel and several references discuss the
complicated nature of cardiology and assert that the petitioner's ability to
perform the complex duties of a cardiologist warrant a waiver of the job
offer requirement in the national interest. The ultimate consequence of this
argument, however, is a blanket waiver for all well trained cardiologists. It is
the position of U.S. Citizenship and Immigration Services (USCIS) to grant
national interest waivers on a case-by-case basis, rather than to establish
blanket waivers for entire fields of specialization. Id. at 2 17.‖ At p. 4.
Jan082010_04B5203.pdf [Another forged G-28.]
Jan082010_03B5203.pdf
Jan082010_02B5203.pdf [Not NIW. Included for finding of fraud.]
Jan082010_01B5203.pdf [Not every foreign college/university graduate is eligible
for a visa! If I see another ―postdoctoral fellow‖ doing further research as he did in
his thesis or dissertation, I may have a stroke!]
SOME OF THESE COULD BE USED AS PRECEDENTS PAGE 19
Jan072010_06B5203.pdf [I’m getting apolplectic...]
―While the petitioner's research is no doubt of value, it can be argued that
any research must be shown to be original and present some benefit if it is to
receive funding and attention from the scientific community. Any Ph.D.
thesis or postdoctoral research, in order to be accepted for graduation,
publication or funding, must offer new and useful information to the pool of
knowledge. It does not follow that every researcher who performs original
research that adds to the general pool of knowledge inherently serves the
national interest to an extent that justifies a waiver of the job offer
requirement.‖ At p. 5.
Jan072010_05B5203.pdf [Not bound by past mistakes, especially past ―gross
error‖.]
Jan072010_04B5203.pdf
Jan072010_03B5203.pdf
Jan072010_01B5203.pdf [Appeal Sustained.]