EB 2 NIW AAO non-precedents of 2010

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

http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Aug122010_01B5203.pdf




http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Jul082010_06B5203.pdf

http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/May062010_01B5203.pdf


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.

http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/May052010_03B5203.pdf

http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Apr302010_02B5203.pdf





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.


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.



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.]





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









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).


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





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


http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Mar312010_01B5203.pdf



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




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).


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.

http://www.whitehouse.gov/omb/circulars/a025/a025.html










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









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



http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Feb232010_04B5203.pdf


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





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.


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







http://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/Jan272010_01B5203.pdf



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.]




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!]



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,












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!]






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.]






EB 2 NIW AAO non-precedents of 2010

Investor Relations

Transcript of EB 2 NIW AAO non-precedents of 2010