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EB2 AAO Decisions Since List Dated July 20th 2011 As of April 14, 2012 (Compiled by Joseph P. Whalen)

Since an earlier posting at: http://www.slideshare.net/BigJoe5/latest-aao-decisions-posted-by-uscis-as-of-july-20th-2011 USCIS has added more AAO non-precedent decisions to its website. This covers only those posted as of this writing found at: Home > LAWS > Administrative Decisions > B5 - Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, NIW on www.uscis.gov

In regard to the “ability to pay” (ATP) issue, AAO gets a lot of mileage out of Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967) , Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977), and Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401(Comm. 1986). Several District Court and Circuit Courts of Appeals decisions are also repeatedly cited throughout these AAO non-precedent decisions. The administrative decisions may be easily accessed at: http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html

While an I-140 may be filed by an alien as a self-petitioner, in order for the alien to file an I-1290B as an Appeal or Motion, (s)he must have filed the I-140 initially. An alien “beneficiary” may not assume the role of or replace the original “petitioner” and become a “self-petitioner”, after the petition has already been filed. It is also noted that on occasion, the USCIS adjudicator may be confused when the prospective employer is listed on the petition BUT the alien actually signed the petition as a “self-petitioner”. When there is some form of confusion, several common mistakes can happen. A Decision may be served on the wrong party by the Director; a wrongly served party may file an appeal or motion or a correct petitioner/self-petitioner may correctly file the appeal or motion and have it rejected because the I-290B filer is not the one who was served the I-292 Denial.

Aug252010_01B5203.pdf Appeal DISMISSED as Abandoned Aug262010_01B5203.pdf Appeal DISMISSED as Abandoned

“Additionally, as noted in the notice of derogatory information, even if the appeal could be otherwise sustained, the petition's approval would be subject to automatic revocation pursuant to 8 C.F.R. § 205.l(a)(iii)(D) which sets forth that an approval is subject to automatic revocation without notice upon termination of the employer's business in an employment-based preference case.”

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Sep222010_02B5203.pdf Appeal DISMISSED

“Specifically, the director determined that the petitioner failed to demonstrate that the beneficiary possessed five years of progressive experience in the specialty and two years of experience in the job offered or related occupation as required by the certified Form ETA 750 prior to the priority date.”

* * * * * “The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.”

* * * * * FN The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(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).

* * * * * “Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. Id. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve reading and applying the plain language of the alien employment certification application form. See id. at 834. USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.”

This one parsed the individual letters submitted as proof of experience and found them severely lacking.

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Nov032010_01B5203.pdf Appeal DISMISSED

“.... The director determined that the petitioner had not established its ability to pay the proffered wage from the priority date onwards. The director denied the petition accordingly.”

Nov042010_01B5203.pdf Appeal DISMISSED (Another ATP case.) Nov162010_01B5203.pdf Appeal SUSTAINED

“.... As set forth in the director's July 6, 2007 denial, the primary issue in this case is whether the job offered requires a member of the professions.”

* * * * * “The director acknowledged these definitions, but then relied on Matter of Shin,11 I&N Dec. 686 (Dist. Dir. 1966) and Matter of Polanky, 12 I&N Dec. 66 (Reg'1. Comm'r. 1966), for the proposition that the degree must be related to the field. We note that in Matter of Shin, 11 I&N Dec. at 688. the District Director did state that a degree in and of itself was insufficient; rather, the "knowledge acquired must also be of [a] nature that is a realistic prerequisite to entry into the particular field of endeavor." The following discussion. however, was limited to the level of education required, not the major field of study. Moreover, Matter of Polanky. 12 I&N Dec. at 68. Addressed an occupation that did not require a full baccalaureate. Further, these cases predate the regulation at 8 C.F.R. § 204.5(k)(2). Therefore, the definition of "profession" in that regulation, which states only that a profession must require a baccalaureate for entry into the occupation, takes precedence over the two cases cited in the director's decision.”

* * * * * FN The AAO maintains plenary power to review each appeal on a de novo basis. See Janka v. U.S. Dept. of Transp., 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.

Dec012010_01B5203.pdf Appeal DISMISSED: No NIW for Massage Therapist.

The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States. The director concluded that because the petitioner did not

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appear to be a member of the professions holding an advanced degree he would need to demonstrate exceptional ability. The director, however, did not expressly address the regulatory criteria for aliens of exceptional ability set forth at 8 C.F.R. §204.5(k)(3)(ii). Rather, the director's decision primarily concluded that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner submits a statement and additional evidence. For the reasons discussed below, we uphold the director's decision. Moreover, we find that the petitioner has not established eligibility for the classification sought as an alien of exceptional ability (or as a member of the professions with an advanced degree). An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

Dec012010_02B5203.pdf Appeal DISMISSED: Lacks ATP, Unrealistic Job Offer, and multiple I-140s by same petitioner (at least 50 I-140 petitions) with differing information on tax returns for the same year across various petitions! Debarred Petitioner

“.... USCIS electronic records indicate that as of September 3, 2010, the petitioner, [REDACTED] has filed 546 nonimmigrant and immigrant petitions in the past six years. Of these over 450 have been non-immigrant petitions and approximately 100 immigrant petitions. The petitioner is obligated to show that it has sufficient funds to pay the proffered wages to all the sponsored beneficiaries from their respective priority dates in accordance with the regulation at 8 C.F.R. §204.5(g)(2). Further, the petitioner would be obligated to pay each H-1B petition beneficiary the prevailing wage in accordance with DOL regulations, and the labor condition application certified with each H-1B petition. See 20 C.F.R. § 655.715. ....”

* * * * * FN If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa

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abroad. Thus, the importance of reviewing the bona fides of a job opportunity as of the priority date, including a prospective U.S. employer's ability to pay the proffered wage is clear.

Dec012010_03B5203.pdf Appeal DISMISSED Debarred Petitioner

“USCIS may not approve a nonimmigrant or immigrant petition during the debarment period, regardless of when it was filed. Accordingly, the instant petition must be denied as the petition became ready for adjudication during the period of debarment.”

* * * * * “The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the overall circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967).”

* * * * * FN We note that certain statutes that preclude USCIS from approving applications effectively require that USCIS deny the application. For instance, the language of Sections 204(c), (d), and (g) of the Act all similarly provide that "notwithstanding [the relevant applicable subsections] . . . no petition shall be approved if [the following facts are present]." Further, on October 21, 1998, President Clinton signed into law the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999, which incorporated several immigration-related provisions, including the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). ACWIA mandated new requirements for petitioners filing for H-1B beneficiaries. Pursuant to ACWIA, penalties were established for H-1B violations on a three tier system: (1) the first tier would encompass non-willful conduct, or less substantial violations such as failure to meet strike, lockout or layoff attestations; failure to meet notice or recruitment attestations; or misrepresentation of a material fact on a labor condition application, and would result in fines of not more than $1,000 per violation and result in the mandatory debarment of at least one year. See ACWIA § 413(a) incorporated at 212(n)(2)(C)(i) of the Act; (2) willful violations, such as willful failure to meet any attestation condition; willful

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misrepresentation; or actions taken in retaliation against whistleblowers, which would result in a fine of not more than $5,000 per violation, and mandatory debarment of two years. See ACWIA $ 413(a) incorporated at 212(n)(2)(C)(ii) of the Act; and (3) willful violations that result in layoffs, such as a violation of the attestation, or misrepresentation of a material fact in the course where an employer displaces a U.S. worker, which would result in a fine not to exceed $35,000 per violation, and mandatory debarment of at least three years. See ACWIA 5 413(a) incorporated at 212(n)(2)(C)(iii) of the Act.

Dec022010_01B5203.pdf Appeal DISMISSED

“As set forth in the director's September 11, 2009 denial, the issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence, and the wages of each respective beneficiary that the petitioner sponsored as the petitioner filed for multiple workers.”

* * * * * “Because a corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its shareholders or of other enterprises or corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980). In a similar case, the Court in Sitar v. Ashcroft, 2003 WL 22203713 (D. Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." As the 2005 W-2 form was issued by a company with a separate tax identification number than that of the petitioner, the wages for 2005 cannot be used to show the petitioner's ability to pay the proffered wage.(FN4omitted) The petitioner must demonstrate that it can pay the full proffered wage in 2005 and the difference between the wages paid and the proffered wage in 2006, 2007, and 2008.”

Dec082010_01B5203.pdf Appeal SUMMARILY DISMISSED

“The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2) as a member of the professions holding an advanced degree or an alien of exceptional ability. The director determined that the petitioner failed

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to demonstrate that the beneficiary possessed the requisite education for the position beginning on the priority date. On appeal, counsel merely stated that the brief in support of the appeal would be submitted to U.S. Citizenship and Immigration services (USCIS) within 30 days. Counsel submitted the appeal on July 18, 2007. As of this date, approximately two and a half years later, the AAO has received nothing further. As stated in 8 C.F.R. §103.3(a)(l)(v), an appeal shall be summarily dismissed if the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. Counsel here has not specifically addressed the reasons stated for denial and has not provided any additional evidence. The appeal must therefore be summarily dismissed.”

Jan042011_01B5203.pdf Appeal REJECTED The person who was listed as an attorney on the G-28 could not be verified with the state bar. RFE was sent but no response was received. Feb112011_01B5203.pdf Appeal REJECTED as UNTIMELY The Director’s Decision stated the wrong filing fee for Form I-290B (it is noted that the form instruction had the correct fee listed on it). The first submission was rejected for the wrong fee. It arrived with the correct fee past the deadline for submission. The untimely appeal did NOT meet the requirements for a Motion. Apr012011_01B5203.pdf Appeal DISMISSED I included an assessment of this case in my October 28, 2011, article in Immigration Daily from ILW.com entitled: “Does Lozada Belong in the Immigration Benefits Context?” See http://www.ilw.com/articles/2011,1028-whalen.shtm

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Apr122011_01B5203.pdf Appeal DISMISSED (Another ATP & questionable financial data plus the petition may not be approved as the petitioner has been determined to be a debarred entity!) See site that AAO accessed March 11, 2010: http://www.dol.gov/whd/immigration/HIBDebarment.htm

FN The AAO notes that the petitioner has filed at least 160 immigrant and nonimmigrant petitions from 2007 when the instant petition was filed.

* * * * * FN The AAO notes that the petitioner stated on the Form I-140 that it employed 70 employees at the time of filing the visa petition. This number of employees is in direct contrast to USCIS records which shows that the petitioner has filed a minimum of 160 immigrant and nonimmigrant petitions from the date of filing of the visa petition in 2007. The AAO notes that the petitioner has filed a total of 501 immigrant and nonimmigrant petitions from 2003 to the present.

* * * * * FN The AAO notes that the website at http://corp.sec.statc.ma.us/corp/corpscarch.asp (accessed on March 14, 2011) reflects the date of organization in Massachusetts for the petitioner as November 17, 2008, not 1998 as stated on the petitioner's federal tax returns.

Apr122011_02B5203.pdf Appeal DISMISSED

“....Upon reviewing the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on the labor certification. Specifically, the director determined that the beneficiary did not possess a U.S. bachelor's degree in engineering, computer science or closely related field.”

* * * * * “.... [T]he issue is whether either the three-year degree or the certificate is a foreign degree equivalent to a U.S. baccalaureate degree or, if not, whether it is appropriate to consider the combination of the degree and certificate.”

* * * * * FN Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases, a specific combination of education and experience). The regulations pertaining to the immigrant classification sought in this matter do not contain similar language.

* * * * *

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* * * * * “K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from DOL that stated the following:

The labor certification made by the Secretary of Labor ... pursuant to section 212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.

(Emphasis added.) Id. at 1009. ....”

Apr182011_01B5203.pdf Appeal DISMISSED

“Throughout the proceeding, the director has found that the petitioner does not qualify for the classification sought either as an alien of exceptional ability or as a member of the professions holding an advanced degree. The director has further concluded that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, the petitioner asserts that the director erred by dismissing the petitioner's final motion as failing to meet the requirements of a motion. The petitioner asserts that he supported his most recent motion with" 17 Pages of Supporting Evidence." The most recent motion, receipt number LIN-011- 082-50307, consists of a 16-page statement with no supporting evidence.”

* * * * * “The AAO recognizes that the petitioner's statement included the reasons for reconsideration and relied on federal case law. That said, a party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. 94, 110 (1988). The petitioner in this matter filed an initial late appeal, considered as a motion pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(2), and five subsequent motions to reopen and/or reconsider. The director considered the evidence on the merits in all but the final motion and has even considered the evidence in light of a recent federal court decision raised by the petitioner in one of his motions. The director has even

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considered whether the petitioner might qualify as a member of the professions holding an advanced degree even though the petitioner has never expressly advanced that claim. The AAO concludes that the director properly determined that the final motion did not require yet another decision on the merits. In the alternative, a review of the record as a whole reveals that the petitioner has failed to establish his eligibility for either the classification sought or a waiver of the alien employment certification process in the national interest, especially as of the initial date of filing in this matter, October 6, 2008. The petitioner must establish his eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 141&N Dec. 45, 49 (Reg'l. Comm'r. 1971). Specifically, the AAO finds that the director raised appropriate considerations when evaluating the evidence submitted to demonstrate exceptional "equivalent"' of a bachelor's degree rather than a "foreign equivalent degree".”

Apr182011_02B5203.pdf Appeal DISMISSED

“In the RFE, the AAO specifically alerted the petitioner that failure to respond to the RFE would result in dismissal since the AAO could not substantively adjudicate the appeal without the information requested. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). Because the petitioner failed to respond to the RFE, the AAO is dismissing the appeal.”

Apr212011_01B5203.pdf Appeal DISMISSED

“.... The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States”.

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Apr212011_02B5203.pdf Appeal DISMISSED

“.... The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States”.

Apr212011_03B5203.pdf Appeal DISMISSED

“....The petitioner, the beneficiary's grandmother, asserts that the beneficiary will work as a U.S. military medical doctor. As of the date of filing, the beneficiary had not worked as a physician for several years. Rather, his recent employment involved marketing pharmaceuticals. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States. The director did not contest that the beneficiary qualifies for classification as an alien of exceptional ability or a member of the professions holding an advanced degree. Rather, the director concluded that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.”

Apr212011_04B5203.pdf Appeal DISMISSED

“....The director did not contest that the petitioner qualifies for the classification sought but determined that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal, counsel submits a brief, evidence that postdates the filing of the petition and evidence already part of the record of proceeding. For the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner has not established his eligibility for the benefit sought. While retention of knowledgeable professors in all fields is in the national interest, the petitioner has not established why the alien employment certification process described at 20 C.F.R. § 656.18 does not address that interest in this case. Specifically, the record does not demonstrate the petitioner's influence in his field such that the alien employment certification process normally required for advanced degree professionals, including professors, should be waived in the national interest.”

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Apr222011_01B5203.pdf Appeal SUSTAINED and Petition APPROVED

“....The petitioner seeks employment as a postdoctoral associate. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States. The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States. On appeal counsel asserts that the director raised improper concerns in the request for additional evidence, such as the level of the petitioner's wages. Counsel raised this objection in response to that notice and the director did not raise these specific concerns again in the final decision. Thus, those concerns are no longer at issue. Counsel further asserts that the director failed to properly consider the letters from distinguished members of the petitioner's field, including members of the National Academy of Sciences, and the petitioner's extensive citation record. For the reasons discussed below, the petitioner has established her eligibility for the benefit sought.”

* * * * * “The AAO concurs with the director that the petitioner works in an area of intrinsic merit, theoretical chemistry, and that the proposed benefits of her work, improvements to materials science and drug development. 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.”

* * * * * “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 she 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, the AAO notes 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.”

* * * * *

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* * * * * “....While publication demonstrates that the petitioner had disseminated her work in the field, at issue is the influential nature of that work once disseminated. The petitioner submitted evidence that her articles have garnered hundreds of citations. Moreover, several of the petitioner's articles throughout her career have consistently garnered moderate citation individually. Finally, the nature of the citations is significant. ....”

* * * * * “The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require the introduction of corroborative testimonial and documentary evidence, where available," Id. If testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). The opinions of experts in the field are not without weight and have been considered above. 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 the AAO has done above, evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795: see also Matter of V-K-. 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 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)). Merely repeating the legal standards does not satisfy the petitioner's burden of proof. ....”

Apr262011_01B5203.pdf Appeal DISMISSED

“As set forth in the director's October 15, 2010 denial, the issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of

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the priority date and continuing until the beneficiary obtains lawful permanent residence. Beyond the decision of the director, the AAO notes that a potential additional ground for dismissal exists because, as discussed below, the petitioner's corporate records at the California Secretary of State website reflect the petitioner's corporate status as currently suspended. See http://kepler.sos.ca.gov/cbs.aspx (accessed April 18, 2009).”

* * * * * “....An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). This corporate status of the petitioner is material to whether the job offer, as outlined on the immigrant petition filed by this organization, is a bona fide job offer. Moreover, any such concealment of the true status of the organization by the petitioner seriously compromises the credibility of the remaining evidence in the record. See Matter of Ho, 19 I&N Dec. 582, 586 (BIA 1988)(stating that doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.) It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. See Id.”

Apr282011_01B5203.pdf Appeal DISMISSED [The pdf is date stamped April 20th instead of the 28th.]

“....The director found that the beneficiary qualifies for classification as an alien of exceptional ability in the sciences, 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 AAO notes that the exact nature of the beneficiary's intended occupation is not entirely clear. ....”

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May022011_01B5203.pdf Appeal DISMISSED

“The AAO issued a notice of intent to deny on March 10, 2010, informing the petitioner of contradictory information in the record raising concerns as to the validity of the job offer, the petitioner's company itself, as well as the petitioner's ability to pay the proffered wage and the beneficiary's academic credentials.”

* * * * * “Because the petitioner failed to respond to the notice of intent to deny, the AAO is dismissing the appeal.”

May172011_03B5203.pdf Appeal REJECTED as Untimely, Case REMANDED to be Treated as a Motion to Reconsider Aug012011_01B5203.pdf Appeal DISMISSED

“U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). USCIS must examine "the language of the labor certification job requirements" in order to determine what the job requires. See generally Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor certification must involve "reading and applying the plain language of the [labor certification application forn1]." Id. at 834 (emphasis added). USCIS cannot and should not reasonably be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.”

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Aug012011_02B5203.pdf Appeal DISMISSED “....The director determined that the job offered did not require an alien of exceptional ability or a member of the professions holding an advanced degree. On appeal, the petitioner asserts that the director erred. For the reasons discussed below, we find that the director's conclusion is supported by the plain language of the regulation at 8 C.F.R. § 204.5(k)( 4), which is binding on us.”

In discussing U.S. bachelor's degrees based on a 3-year accelerated programs: “.... The AAO notes that U.S. programs that allow students to work at an accelerated pace possess the same credit hours as a 4-year U.S. bachelor's degree. ....”

Aug022011_01B5203.pdf Appeal DISMISSED

“....The director also determined that the petitioner had not established that the beneficiary possessed the requisite two years of experience and other special requirements as set forth on the labor certification and did not establish its continuing ability to pay the proffered wage.”

* * * * * “The director observed that the petitioner's notation that it would accept a combination of education, experience and other credentials as a degree equivalent made it problematic that the petitioner's labor certification demonstrated that the job offered requires a professional holding an advanced degree per the regulatory definition. As noted above, the acceptable equivalency to a master's degree by regulation is a "A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree." 8 C.F.R. § 204.5(k)(2). On appeal, counsel states that the notation regarding the combination was inserted in box 15 to explain the term "equivalent" set forth in Item 14 as there was no space for explanation in section 14. It is unclear why the petitioner did not have space to express that a bachelor's plus five years of progressive experience may be substituted for a master's degree. It is noted that in order to have experience and education

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equating to an advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree and five post-baccalaureate years of progressive experience.....”

* * * * * FN It is noted that certain nontaxable benefits are referred to as "cafeteria plans," and generally permit employees to receive such benefits on a pretax basis. Cafeteria plans are separate written plans that meet specific requirements. See Section 125 of the Internal Revenue Code; see also http://www.irs.gov/govtlfslg/article/0 .. id=112720.00.html. Further, the AAO will not add back cafeteria plan deductions and other fringe benefits to the wages paid to ascertain compensation. See In Matter of Koba, 91-INA-ll (BALCA May 29, 1991), where BALCA generally concurs fringe benefits are not considered in determining the relevant prevailing wage unless the benefits are "unique" (not common) and disclosed in all advertisements.

* * * * * FN See also, Matter of Izummi, 22 I&N 169,196-197 (Comm. 1968). The AAO is bound by the Act, regulations, precedent decisions of the agency and published decisions from the circuit court of appeals from the circuit where the action arose. See N.L.R.B v. Ashkenazy Property Management Corp., 817 F.2d 74,75 (9th Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001)(unpublished agency decisions and agency legal memoranda are not binding under the APA, even when they are published in private publications or widely circulated).

Aug032011_01B5203.pdf Prior Appeal was DISMISSED, Current Motion is DISMISSED

“....The director found that the beneficiary qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. The AAO agreed with the director's findings, and dismissed the appeal. The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 103.5(a)(4) states that a motion that does not meet applicable requirements shall be dismissed.

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The AAO dismissed the appeal on March 26, 2010. The beneficiary signed Form I-290B, Notice of Appeal or Motion, and filed the motion on April 27, 2010. The beneficiary, however, is not an affected party with standing in this proceeding. See 8 C.F.R. § 103.3(a)(1)(iii)(B). The regulations at 8 C.F.R. §§ 103.5(a)(1)(i) and (iii)(A) state that only an affected party may file a motion. Because the beneficiary is not an affected party, the AAO cannot accept, and therefore must dismiss, the motion. In the alternative, the motion would not prevail on its merits. ....”

Aug032011_02B5203.pdf Appeal SUMMARILY DISMISSED

“....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.”

* * * * * “Because the petitioner has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis for the appeal, the AAO must summarily dismiss the appeal. The AAO notes the approval of a more recent petition that an intending employer filed on the alien's behalf, on September 15, 2010. The petition included an approved labor certification. The director approved that petition on September 21, 2010.”

Aug032011_03B5203.pdf Appeal DISMISSED [Being pissy is useless!]

“....The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States.”

* * * * * “The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.”

“The director denied the petition on April 14, 2010. The director acknowledged the substantial intrinsic merit of the petitioner's field, but

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found that the petitioner's work lacks national scope because "the beneficiary will work primarily as a professor at a University. His benefit will primarily impact the students who attend." The director acknowledged the witness letters, but found that the letters did not show the impact or scope of the petitioner's contributions to his field. The director found that "the petitioner had only co-authored a few articles" with a minimal citation record. The director noted that the petitioner may have a promising career before him, but concluded that the petitioner had not shown that this promise had, so far, translated into demonstrably important and influential work. The AAO disagrees with the director's finding that the petitioner's work lacks national scope. While classroom instruction is geographically limited, the petitioner has produced research for publication in national and international journals, thereby disseminating his work over a larger area. There is nothing location-specific about the petitioner's overall work, and indeed the very nature of the maritime industry, both for cruise ships and other vessels, involves travel over great distances. The AAO therefore finds that the petitioner's research work is national in scope. On appeal, counsel called the director's decision "so poorly decided, so sloppy, and with so little relationship between the decision and the material submitted that it has already been submitted to the Ombudsman. A formal complaint will also be issued to CIS as well as through various congressional offices." The procedure to dispute an adverse decision is through the appeal process, and the AAO will give the appeal appropriate consideration. The claim the counsel has filed or will file additional complaints through other channels has no effect on the outcome of the AAO's appellate decision. As an example of the "sloppiness" of the decision, counsel notes that the decision refers to "critical care research," which is not the petitioner's field of endeavor. The AAO acknowledges this error, but also acknowledges that the rest of the decision is fully consistent with the record. It appears that this reference to "critical care research" is the result of copying language from one decision into another. The result is a factual error, but in context this is a minor, non-prejudicial error, comparable to counsel's own error in confusing "billion" with "trillion." Counsel repeats the prior assertion that "[t]he decision was made to forego the Special Handling Procedure, since the Department of Labor's PERM

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section is totally dysfunctional, and typical PERM cases are taking two years or more for college professors." This is not a basis for the national interest waiver, it is an expression of frustration regarding (unsubstantiated) complaints about the labor certification process. Nothing in the legislative history suggests that the national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. Matter of New York State Dept. of Transportation, 22 I&N Dec. 223. Counsel protests: "the denial letter itself FAILS TO MENTION ANY OF THE EVIDENCE SUBMITTED, OTHER THAN REFEREE LETTERS" (counsel's emphasis). This is a false claim. Indeed, counsel contradicts this claim later in the appellate brief, acknowledging that the director noted the petitioner's submission of "articles that have been published in scholarly journals" and evidence of citation of those articles. The director did not discuss these materials at great length, but it is simply not true that the director "fail[ed] to mention" them at all, and counsel clearly knew that this was not true. Counsel protests that USCIS adjudicators "apparently judge all petitions on the basis of numbers of citations." Citations are not the only basis for evaluating a researcher's work, but they have the advantage of being an objective measure that exists independently of the petition; they are not tailored to meet one particular researcher's needs, as is unavoidably the case with witness letters specially solicited to support a petition. Apart from citations, the petitioner might, for example, show that major cruise lines have significantly altered their practices as a result of his published findings or recommendations. The petitioner has not done so, nor has he shown that his work has had any significant practical impact on the cruise ship industry. The petitioner's witnesses are all at the academic level. If the petitioner's expertise focuses on the cruise ship industry, and that industry (as opposed to academia) has not acted on his work in a demonstrable and meaningful way, then it is hard to say that his work has had any impact at all. Regarding the petitioner's citation history, counsel states: "it would be interesting to know how the examiner is able to state that 14 citations are not many. What standard is he using?" The regulation at 8 C.F.R. § 103.3 (a)(1)(i) requires the petitioner to explain the grounds for denial, but the burden is not on the director to prove that the petitioner's evidence is insufficient. Rather, the burden is on the petitioner to show that he qualifies

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for the benefit sought. See Section 291 of the Act, 8 U.S.C. § 1361. The AAO acknowledges counsel's observation that some fields may produce more citations than others, but the petitioner cannot simply produce a handful of citations and challenge USCIS to show that the numbers are insufficient.”

* * * * * “For all counsel's complaints about the "sloppiness" of the director's decision, counsel has not put forth a coherent claim for a national interest waiver in this case. Instead, counsel has described the petitioner's credentials and professional achievements, while protesting that the labor certification process would take longer than the petitioner would care to wait.”

Aug082011_01B5203.pdf Appeal DISMISSED

“....The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and that the beneficiary did not satisfy the minimum level of experience stated on the Form ETA 750. The director denied the petition accordingly.”

* * * * * FN We note that the case involves the substitution of a beneficiary on the labor certification. Substitution of beneficiaries was permitted by the DOL at the time of filing this petition. DOL had published an interim final rule, which limited the validity of an approved labor certification to the specific alien named on the labor certification application. See 56 Fed. Reg. 54925, 54930 (October 23, 1991). The interim final rule eliminated the practice of substitution. On December 1, 1994, the U.S. District Court for the District of Columbia, acting under the mandate of the U.S. Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an order invalidating the portion of the interim final rule, which eliminated substitution of labor certification beneficiaries. The Kooritzky decision effectively led 20 C.F.R. §§ 656.30(c)(1) and (2) to read the same as the regulations had read before November 22, 1991, and allow the substitution of a beneficiary. Following the Kooritzky decision, DOL processed substitution requests pursuant to a May 4, 1995 DOL Field Memorandum, which reinstated procedures in existence prior to the implementation of the Immigration Act of 1990 (IMMACT 90). DOL delegated responsibility for substituting labor certification beneficiaries to U.S. Citizenship and Immigration Services (USCIS) based on a Memorandum of Understanding, which was recently rescinded. See 72 Fed. Reg. 27904 (May 17, 2007) (codified at 20 C.F.R. § 656). DOL's final rule

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became effective July 16, 2007, and prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. As the filing of the instant case predates the rule, substitution will be allowed for the present petition.

Aug242011_01B5203.pdf Appeal DISMISSED

“....The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition accordingly.” FN The AAO also notes that the petitioner listed its address as being in Omaha, Nebraska on the alien employment certification, but changed its address to Irving, Texas by the time it filed the Form 1-140 almost two years later. A labor certification for a specific job offer is valid only for the particular job opportunity, the alien for whom the certification was granted, and for the area of intended employment stated on the Form ETA 750. 20 C.F.R. § 656.30(C)(2). It seems that the petitioner intends to employ the beneficiary as a software engineer in Irving, Texas, which is outside of the terms of the Form ETA 750. See Sunoco Energy Development Company, 17 I&N Dec. 283 (Reg'l Comm'r 1979). The AAO finds that Irving, Texas is located far from Omaha, Nebraska and that the petitioner has not submitted any evidence that the prevailing wage and would be the same for that location.

Aug242011_02B5203.pdf Denial WITHDRAWN, Case REMANDED

“....[B]ecause the petition is not approvable, it is remanded for further action and consideration.”

“....Upon reviewing the petition, the director determined that the beneficiary did not qualify for the second preference classification. Specifically, the director determined that the beneficiary did not possess a Master's degree in computer applications, math, or mechanical engineering.

On appeal, counsel submits a brief and two evaluations regarding the beneficiary's educational background. The AAO will withdraw the director's decision.”

“.... AAO has consulted the Electronic Database for Global Education (EDGE) as a tool to help analyze the beneficiary's educational background. According to its website, AACRAO, which created EDGE is "a nonprofit,

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voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world .. " See http://www.aacrao.org/About-AACRAO.aspx (accessed July 22, 2011). Its mission "is to provide professional development, guidelines and voluntary standards to be used by higher education officials regarding the best practices in records management, admissions, enrollment management, administrative information technology and student services." Id. In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D. Minn. March 27, 2009), a federal district court determined that the AAO provided a rational explanation for its reliance on information provided by AACRAO to support its decision.

According to the login page, EDGE is "a web-based resource for the evaluation of foreign educational credentials" that is continually updated and revised by staff and members of AACRAO. Dale E. Gough, Director of International Education Services, "AACRAO EDGE Login," http://aacraoedge.aacrao.org/ (accessed July 22, 2011). In Tisco Group, Inc. v. Napolitano, 2010 WL 3464314 (E.D. Mich. August 30,2010), a federal district court found that USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc., 2010 WL 3325442 (E.D. Mich. August 20, 2010), a federal district court upheld a USCIS conclusion that the alien's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The court also noted that the alien employment certification itself required a degree and did not allow for the combination of education and experience.”

The decisions linked above range in length from a mere two pages to over twenty pages. There are numerous issues addressed throughout them, which include: ability to pay, beneficiary’s qualification, petitioner’s viability, unrealistic job offers, debarment, questionable accounting methods, “over petitioning”, classification of the job listed on the labor certification, and evaluation of foreign degrees. Read on!