national interest waiver aao dismissals october-november 2014 to date

Contact: [email protected] OR 716-604-4233 or 716-768-6506 1

National Interest Waiver (EB-2) AAO Dismissals

Posted for October & November 2014, To Date1

Compiled By Joseph P. Whalen (December 14, 2014)

I. Introduction: In light of the Executive Action announced by the President on November 20,

2014, and one of the associated Memos from the Secretary of Homeland Security,

this compilation is devoted specifically to those interested in the directive for USCIS

to clarify the standards by which entrepreneurs, including inventors, researchers, and

founders of start-up enterprises may be awarded a National Interest Waiver2 (NIW).

I have previously commented on this topic3, if interested in that please see here.

Currently, the key legal source of interpretation of the statutory provision for the

non-physician or “Standard” National Interest Waiver is Matter of New York State Department of Transportation, 22 I&N Dec.215 (AAO 1998), (NYSDOT)4. It is

that interpretation that the directive does not specifically name but clearly implies must be revisited and clarified so that the NIW may be utilized more readily by

these specified classes of aliens who would most likely be engaged in enterprises,

activities and deals that would “…substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States…”

The INA Provision At Issue

(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional

ability

(A) In general Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not

required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will

substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States,

and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) Waiver of job offer

(i) National interest waiver Subject to clause (ii)5, the Attorney General [Secretary of Homeland Security] may, when the Attorney General

[Secretary of Homeland Security] deems it to be in the national interest, waive the requirements of subparagraph (A)

that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.

[The remainder of the “article” resumes on page 33.]

1 As of this writ ing there are additional October and November EB-2 AAO Decisions posted but they do not address

National Interest Waivers (NIWs) so are left off of this list. 2 Immigration and Nationality Act or INA §203(b)(2)(B)(i) [8 U.S.C. § 1153(b)(2)(B)(i)]

3 SEE: http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-guidance-10292012

4 The immigration regulation pertain ing to this waiver is virtually useless because it provides no actual interpretive

guidance. 5 Clause (ii) deals exclusively with physicians working in defined shortage areas/locations or for the VA.

http://www.slideshare.net/BigJoe5/112014-dhs-sec-memo-to-uscis-and-ice-business-actions

http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-guidance-10292012

http://www.justice.gov/eoir/vll/intdec/vol22/3363.pdf

http://www.justice.gov/eoir/vll/intdec/vol22/3363.pdf

http://uscode.house.gov/view.xhtml?req=(title:8%20section:1153%20edition:prelim)%20OR%20(granuleid:USC-prelim-title8-section1153)&f=treesort&edition=prelim&num=0&jumpTo=true



II. Recent AAO Non-Precedents:

AAO EB-2 NIW Decisions Dated October & November 2014

LINK COMMENTS, EXCERPTS, HOLDING

OCT102014_01B5203.pdf

This is but the first of many physicians in this small

sample where (s)he forgoes

the obvious NIW carved out specifically for

physicians who are willing

to serve in underserved areas or at a Veterans Administration (VA)

hospital/facility.

Altruism may indeed be a thing of the past. We now

see physicians, especially those fresh out of training, who already have a God

Complex and are seeking to

be in private practice and billing Medicaid and Medicare directly.

Just keep reading. That

statement will make more

sense as you progress through these pages and better still, through these

and other decisions that are

posted and available for you to read.

Am I a cynic? I’ll answer that question later.

Appeal Dismissed for this “Radiologist”.

“…The director found that the petitioner qualifies for

classification as a member of the professions holding

an advanced degree, but that the petitioner has not

established that an exemption from the requirement

of a job offer would be in the national interest of the

United States.”

* * * * *

“The director did not dispute that the petitioner

qualifies as a member of the professions holding an

advanced degree. The sole issue in contention is

whether the petitioner has established that a waiver

of the job offer requirement, and thus a labor

certification, is in the national interest.

Neither the statute nor the pertinent regulations

define the term "national interest." Additionally,

Congress did not provide a specific definition of "in

the national interest." The Committee on the

Judiciary merely noted in its report to the Senate that

the committee had "focused on national interest by

increasing the number and proportion of visas for

immigrants who would benefit the United States

economically and otherwise .... " S. Rep. No. 55, l0lst

Cong., 1st Sess., 11 (1989).

Supplementary information to regulations

implementing the Immigration Act of 1990, Pub. L.

101-649, 104 Stat. 4978 (Nov. 29, 1990), published

at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states:

The Service [now U.S. Citizenship and

Immigration Services (USCIS)] believes it

appropriate to leave the application of this test

http://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2014/OCT102014_01B5203.pdf




as flexible as possible, although clearly an alien

seeking to meet the [national interest] standard

must make a showing significantly above that

necessary to prove the "prospective national

benefit" [required of aliens seeking to qualify

as "exceptional."] The burden will rest with the

alien to establish that exemption from, or

waiver of, the job offer will be in the national

interest. Each case is to be judged on its own

merits.

In re New York State Dep't of Transportation, 22

I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998)

(NYSDOT), has set forth several factors which must

be considered when evaluating a request for a

national interest waiver. First, a petitioner must

establish that the alien seeks employment in an area

of substantial intrinsic merit. Id. at 217. Next, a

petitioner must establish that the proposed benefit

will be national in scope. Id. Finally, the petitioner

seeking the waiver must establish that the alien will

serve the national interest to a substantially greater

degree than would an available U.S. worker having

the same minimum qualifications. Id. at 217-18.

While the national interest waiver hinges on

prospective national benefit, the petitioner must

establish that the alien's past record justifies

projections of future benefit to the national interest.

Id. at 219. The petitioner's assurance that the alien

will, in the future, serve the national interest cannot

suffice to establish prospective national benefit. The

term "prospective" is included here to require future

contributions by the alien, rather than to facilitate the

entry of an alien with no demonstrable prior

achievements, and whose benefit to the national

interest would thus be entirely speculative. Id.




NYSDOT created a three prong test for the desired

qualifications and attributes that need to be

demonstrated in order to

be awarded a National Interest Waiver. It is

perhaps too restrictive.

The USCIS regulation at 8 C.F.R. § 204.5(k)(2)

defines "exceptional ability" as "a degree of expertise

significantly above that ordinarily encountered" in a

given area of endeavor. By statute, aliens of

exceptional ability are generally subject to the job

offer/labor certification requirement; they are not

exempt by virtue of their exceptional ability.

Therefore, whether a given alien seeks classification

as an alien of exceptional ability, or as a member of

the professions holding an advanced degree, that

alien cannot qualify for a waiver just by

demonstrating a degree of expertise significantly

above that ordinarily encountered in his or her field

of expertise.

The intrinsic merit and national scope of medical

research are not in dispute in this proceeding. The

question at hand is whether the petitioner's impact

and influence on his field satisfy the third prong of

the NYSDOT national interest test.”

OCT102014_02B5203.pdf Appeal of Revocation Dismissed for this

“Unconventional Gas Footprint Reduction Lead”.

“The petitioner seeks classification under section

203(b)(2) of the Immigration and Nationality Act

(the Act), 8 U.S.C. § 1153(b)(2), as an alien of

exceptional ability in the sciences, the arts, or

business. At the time she filed the petition, the

petitioner was an unconventional gas footprint

reduction lead for [____]. Subsequently, in response

to the director's notice of intent to revoke the

approval of the petition, the petitioner stated that she

is an "independent consultant working for a specific

oil producer now." The petitioner asserts that an

exemption from the requirement of a job offer, and





thus of a labor certification, is in the national interest

of the United States. The director did not dispute

that the petitioner qualifies for the classification

sought, but found that the petitioner has not



United States.

On appeal, the petitioner submits a legal brief.

Attorney [___] represented the petitioner at the time

she filed the appeal on February 7, 2014, and

prepared the appellate brief that we received on

March 10, 2014. Later, on March 26, 2014, the

Executive Office for Immigration Review suspended

Mr. [___] from practicing before the Department of

Homeland Security. Therefore, we cannot recognize

Mr. [___] as the petitioner's attorney of record at this

time. The appellate brief will receive due

consideration, but we consider the petitioner to be

self-represented in this proceeding.

* * * * *

“…NYSDOT elsewhere states: "Because, by statute,

'exceptional ability' is not by itself sufficient cause for

a national interest waiver, the benefit which the alien

presents to his or her field of endeavor must greatly

exceed the 'achievements and significant

contributions' contemplated in the regulation at 8

C.F.R. § 204.5(k)(3)(ii)(F)." Id. at 219. Taken as a

whole, the NYSDOT decision does not indicate that

minuscule influence on the field, however limited,

always necessarily suffices to establish eligibility for

the national interest waiver. Furthermore, the first

quoted passage from NYSDOT specifies that the

influence must be "on the field as a whole."

Therefore, influence on a particular group or within

one corporation does not meet the standard of

"influence on the field as a whole."”




OCT102014_03B5203.pdf Appeal Dismissed for this “Computational Linguist”.

“When he filed the petition, the petitioner was a

junior database analyst/programmer at [____]. The

petitioner asserts that an exemption from the

requirement of a job offer, and thus of a labor

certification, is in the national interest of the United

States. The director found that the petitioner

qualifies for classification as a member of the

professions holding an advanced degree but that the

petitioner had not established that an exemption

from the requirement of a job offer would be in the

national interest of the United States.”

* * * * *

“The director denied the petition on November 26,

2013, stating that the petitioner "cannot qualify for a

waiver just by demonstrating a degree of expertise

significantly above that ordinarily encountered in his

or her field of expertise." The director stated that the

petitioner meets the first two prongs of the

NYSDOT national interest test, pertaining to

intrinsic merit and national scope, but that the

petitioner had not established his influence on the

field as a whole. To support this conclusion, the

director noted the minimal citation history of the

petitioner's research, and stated that "the petitioner's

only conference presentation was over a decade ago."

The director acknowledged the third-party letters in

the record, but stated that the letters "do not indicate

that the beneficiary's contributions have enjoyed

widespread implementation in the field." The

director found that the petitioner's other evidence

establishes his participation in various projects, but

does not show the nature or extent of the petitioner's

contributions.”

* * * * *





“A recurring assertion in the record, from the

petitioner and from other writers, is that few

computational linguists are skilled in Southeast Asian

languages, and therefore he would be difficult or

impossible to replace. Dr. [___] in her letter submitted

on appeal, acknowledges that "it is not a basis to grant a

waiver of labor certification just because it is difficult to

find an ideal US worker to fill the position," but

maintains that the project would suffer grave setbacks if

were to replace the petitioner mid-project. (The record

does not show how the petitioner's subsequent

relocation to Fort Wayne has affected his employment

in [____]) The Department of Labor regulation at 20

C.F.R. § 656.17(h)(2)(i) provides that the nature of

some occupations (e.g. , translators) can justify a

foreign language requirement in an application for

labor certification as a matter of business necessity.

Southeast Asian languages may be underrepresented in

some linguistic databases, but this does not make the

petitioner's national origin (from a country in Southeast

Asia) an affirmative factor in granting the national

interest waiver.

The asserted scarcity of the petitioner's skills would

appear to be a favorable factor in granting labor

certification, provided those skills are required for the

job. Labor certification would not be available for

temporary employment, and Dr. [___]’s assertion that

he has recommended the petitioner to various doctoral

programs indicates that the petitioner's education and

training are not yet complete. If the petitioner's

engagement with the project at [___] is temporary as

the above information suggests, then the question

arises as to why it is in the national interest to grant him

permanent immigration benefits for temporary

employment that his H -1 B nonimmigrant status

already authorizes him to perform.




The director correctly observed that letters alone

cannot establish eligibility for the waiver. USCIS

may, in its discretion, use as advisory opinions

statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795

(Comm'r 1988). However, USCIS is ultimately

responsible for making the final determination

regarding an alien's eligibility for the benefit sought.

Id The submission of letters from experts supporting

the petition is not presumptive evidence of eligibility;

USCIS may, as above, evaluate the content of those

letters as to whether they support the alien's

eligibility. See id at 795; see also Matter of V-K-, 24

I&N Dec. 500, 502 n.2 (BIA 2008) (noting that

expert opinion testimony does not purport to be

evidence as to "fact").

The writers can attest to their own knowledge of the

petitioner's work, within the confines of their own

interactions and collaborations with the petitioner or

familiarity with his work. They cannot, however,

establish broader claims of fact, such as the assertion

that the petitioner's work has attracted significant

international attention, or has been the subject of

inquiry from The petitioner has not relied exclusively

on letters, but there is a gap between the information

in the letters and the facts established by the other

evidence. As a result, the record establishes the

overall importance of the projects to which the

petitioner has contributed, but not that the

petitioner's work on those projects have influenced

the field as a whole.”




OCT102014_04B5203.pdf Appeal Dismissed for this “CEO”.




exceptional ability in business and as a member of

the professions holding an advanced degree. The

petitioner seeks employment as the chief executive

officer (CEO) of [_____] (The capitalization of

[_____] varies in the record.). The petitioner asserts

that an exemption from the requirement of a job

offer, and thus of a labor certification, is in the

national interest of the United States. The director

found that the petitioner qualifies for the

classification sought, but that the petitioner has not



United States.

On appeal, the petitioner submits a legal brief and

three letters.”

* * * * *

“The petitioner claims eligibility for classification as

an alien of exceptional ability in business and as a

member of the professions holding an advanced

degree. The record establishes that the petitioner,

whose occupation requires at least a bachelor's

degree and who holds two post-baccalaureate

degrees, qualifies as a member of the professions

holding an advanced degree. An additional

determination regarding the petitioner's claim of

exceptional ability would be moot. The sole issue in

contention is whether the petitioner has established

that a waiver of the job offer requirement, and thus a

labor certification, is in the national interest.”

* * * * *





“The director denied the petition on November 18,

2013, stating that the petitioner had established the

intrinsic merit and national scope of his intended

occupation, but that he had not shown "a history of

achievement with some degree of influence on the

field as a whole" at the time of filing. The director

found that the letters submitted with the petition did

not "describe[] how the petitioner's work has

influenced or impacted the beneficiary's field," and

that "statements pertaining to the expectation of

future results rather than a past record of

achievement fail to demonstrate eligibility for a

national interest waiver." The director acknowledged

the evidence regarding [___] sale of [___] but found:

"[n]o evidence was provided to show how this

application was selected for this placement. In

addition this application's release and the placement

on the New and Noteworthy page happened after the

filing of this petition."”

OCT102014_05B5203.pdf Appeal Dismissed for this “Research Programmer”.

“….The director found that the petitioner qualifies

for classification as a member of the professions

holding an advanced degree, but that the petitioner

has not established that an exemption from the

requirement of a job offer would be in the national

interest of the United States.”

* * * * *

“The director issued a request for evidence on

September 19, 2013. In that notice, the director

stated that the petitioner had established the intrinsic

merit of his occupation, but had not met the other

two prongs of the NYSDOT national interest test:

…..”

* * * * *





“The director denied the petition on January 11,

2014, determining that the petitioner had established

the intrinsic merit and national scope of the

petitioner's employment, but not his influence on the

field. The director quoted from letters submitted in

response to the request for evidence and, relying on

NYSDOT, stated:

The employer's assertions regarding the

overall importance of an alien's area of

expertise cannot suffice, however, to establish

eligibility for a national interest waiver. It does

not appear to have been the intent of Congress

to grant national interest waivers on the basis

of the overall importance of a given

profession, rather than on the merits of the

individual alien as they relate to the job to be

performed.

Any objective qualifications which are

necessary for the performance of the

occupation can be articulated in an application

for alien labor certification; the fact that the

alien is qualified for the job does not warrant a

waiver of the job offer/labor certification

requirement. It cannot suffice to state that the

alien possesses useful skills, or a "unique

background." Special or unusual knowledge or

training, while perhaps attractive to the

prospective U.S. employer, does not

inherently meet the national interest

threshold.”

* * * * *

“An applicant or petitioner must establish that he or

she is eligible for the requested benefit at the time of

filing the benefit request and must continue to be

eligible through adjudication. 8 C.F.R. § 103.2 (b)(1).




At the time the petitioner filed the petition in August

2013, the waiver application relied on a specific fact

pattern involving employment at [___] and the

petitioner's involvement in specific, identified

projects there. The waiver request was predicated on

the assertion that it was important for the petitioner

to remain at [___]. The appeal makes it clear that

this fact pattern no longer applies. The job offer

from [____] did not exist until January 2014, and

therefore cannot form the basis for immigration

benefits with an August 2013 priority date. USCIS

cannot properly approve the petition at a future date

after the petitioner or beneficiary becomes eligible

under a new set of facts. See Matter of Katigbak, 14

I&N Dec. 45, 49 (Reg'l Comm'r 1971). See also Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r

1998) (a petitioner may not make material changes to

a petition that has already been filed in an effort to

make an apparently deficient petition conform to

USCIS requirements).”

OCT102014_06B5203.pdf

Appeal Dismissed for this Alleged “Alien of

Exceptional Ability” in Business seeking

employment as a “Bank Executive”.

“..…The record provides different titles for the

petitioner, including "senior vice president,"[___]

divisional director" and "director of business

development." The petitioner asserts that an



of the United States. The director found that the

petitioner has not established that he qualifies for

classification as an alien of exceptional ability, and

that he has not established that an exemption from

the requirement of a job offer would be in the






The NIW really becomes a

moot point when the beneficiary (self-petitioner

in this case) fails to meet the basic requirements for an EB-2 Immigrant Visa.

* * * * *

“Because the petitioner has not met at least three of

the regulatory criteria for exceptional ability, we need

not proceed to a final merits determination as

described in Kazarian. The petitioner has not

established a prima facie claim of exceptional ability

in business.”

* * * * *

“II. National Interest Waiver

The second and final issue in contention is whether

the petitioner has established that a waiver of the job

offer requirement, and thus a labor certification, is in

the national interest. The petitioner cannot qualify

for the waiver without first showing eligibility for the

underlying immigrant classification, but the director

addressed the merits of the waiver application and

we will do the same here.”

OCT102014_07B5203.pdf

This one is a MUST

READ!

AAO found that the director was in error

because the position of a

“Bank Official” is not among the “Professions”

cited in the INA definition nor could a case be made

to include it among “the professions”.

Beyond the issues thus far recited, this case tries to

liken this Bank Official’s

Appeal Dismissed for this “Bank Vice President and

Credit Analyst”.

The petitioner, a commercial bank, sought to classify

the beneficiary as an alien of exceptional ability in

business and as a member of the professions holding

an advanced degree.

“…The director found that the beneficiary "holds the

requisite U.S. advanced degree," but that the

petitioner has not established that an exemption



* * * * *

“The beneficiary claims no degree above a

baccalaureate in business administration from which

she earned in January 2006. Therefore, the

petitioner's implied contention is that the





duties of overseeing loans to businesses as similar to an EB-5 investor because

his duties “helped” create and preserve jobs in the

U.S.

beneficiary's subsequent six years of post-

baccalaureate experience are equivalent to a master's

degree.”

OCT102014_08B5203.pdf

This beneficiary has not

done much yet but in a few years anything is possible.

Read how the brief severely misquotes the law in an

attempt to “pad the credentials” of this bene!

Appeal Dismissed for this “Quality Engineer”.






United States.”

OCT242014_01B5203.pdf

Another MUST READ!

Might the outcome be

different under a reinterpreted NIW

standard for entrepreneurs?

I don’t know. We will just

have wait to see how USCIS, whether through

AAO or OCC or a combination and maybe

with some input from IPO, does, in fact, reinterpret the

standard.

Appeal Dismissed for this “Senior Business Analyst”

who seeks to “take over ownership” of a restaurant

with an intent to develop an Indian food chain of

restaurants.



an advanced degree [MBA], but that the petitioner

has not established that an exemption from the

requirement of a job offer would be in the national

interest of the United States.”

* * * * *

“The petitioner stated: "I would be OK with 2 years'

conditional green card for the Entrepreneurs as I am

very confident that would be ready to come [to] the

national stage in 2016." The petitioner filed a petition

for classification under section 203(b)(2) of the Act.

An entrepreneur can qualify for benefits under that

classification, but the classification does not provide






As an alternative, perhaps such an entrepreneur could benefit from “entrepreneur

parole” until an EB-2 visa & NIW became more

feasible?

Again, we will just have to wait and see how that potential avenue for

entrepreneurs turns out.

for conditional residence for entrepreneurs. Section

203(b)(5) of the Act provides for a separate immigrant

classification (known as EB-5) specifically for

entrepreneurs. The EB-5 classification, which does

provide for conditional residence, has a different

petition form (Form I-526, Immigrant Petition by

Alien Entrepreneur) and different governing

regulations at 8 C.P.R. § 204.6. To qualify for that

classification, current regulations require an alien to

invest at least $500,000 or $1,000,000 of his own

funds (depending on the geographic area of the

business) in the commercial enterprise. See 8 C.F.R.

§ 204.6(f). The petitioner does not claim to have

made such an investment. Rather, his business plan

makes it clear that he seeks outside capital to fund the

venture.

The petitioner stated that his restaurant compares

favorably to other Indian restaurants in the United

States in terms of price, variety, and other factors, but

this information does not establish impact or

influence on the field as a whole.”

OCT242014_02B5203.pdf

Medical Researchers who want to get out of obtaining

a firm job offer and labor cert need to use EB-1B.

Physicians may get a NIW within EB-2 as a general

class because Congress carved out an exception for

them but it has strings

attached.

Appeal Dismissed for this “Medical Researcher

and/or Physician”.






United States.”

* * * * *

“An introductory statement submitted with the

petition contends that the petitioner "is an outstanding

and superb clinical researcher in the field of





Obstetrics and Gynecology" (OB/GYN), who "has

produced original scientific contributions that have

significantly influenced her field."

The petitioner submitted 11 exhibits under the

heading of "A wards, Recognitions and

Memberships." Such materials can provide partial

support for a claim of exceptional ability under the

USCIS regulations at 8 C.F.R. § 204.5(k)(3)(ii) (F)

and (E), respectively, but by statute, exceptional ability

is not presumptive grounds for the waiver. Awards of

particular importance can reflect the impact and

influence of the petitioner's contributions, but the

submitted awards are all at the student or resident

level, from institutions where the petitioner was

training at the time of the awards. As such, they show

that the petitioner was a good student, but they do not

establish influence on the field as a whole.”

* * * * *

“The director denied the petition on January 9, 2014.

The director found that the petitioner had met the

first two prongs of the NYSDOT national interest test

concerning intrinsic merit and national scope, but that

she had not established her impact and influence on

the field as a whole. The director stated that the

petitioner did not show that her published and

presented work amount to influential contributions to

the field, and that the record does not support claims

in the submitted letters regarding the importance and

impact of the petitioner's work.”

OCT292014_01B5203.pdf

The self-petitioner checked two boxes on the I-290B as

both an MTR (reopen) and an Appeal. As the MTR criteria was not met (or

Appeal Dismissed for this Advanced Degree Holder

for an “Unspecific Position in Systems Engineering”.








addressed) AAO considered this strictly as an

Appeal.

Buletini is often cited as meaning that the

submission of minimal

evidence somehow shifts the burden upon USCIS to “disprove” eligibility. That

is nonsense but that

argument persists.



United States.”

* * * * *

“…The existence of the petitioner's articles is not, by

itself, evidence of eligibility, and their submission did

not establish a presumption of eligibility that the

director was obliged to rebut. The articles show that

the petitioner has published on a range of subjects,

but they do not establish the extent, if any, to which

those articles have influenced the field as a whole.”

OCT292014_02B5203.pdf

Once again we see a

Physician trying for the

Standard NIW instead of the one especially for that profession. So many brand

new doctors seem to have graduated with the “God

Complex” already

developed. Are they teaching that now?


as a “Physician Specializing in Cardiology”.

“…The petitioner has been in training at the [____]

Hospitals and Clinics, first as a resident and now as a

fellow.”

* * * * *

“Publication and presentation of scientific research

produce benefits that are national in scope because

of the dissemination of useful new information to the

wider scientific community. Therefore, the

petitioner's occupation meets the "national scope"

prong of the NYSDOT national interest test,

provided that the petitioner continues to perform

research. If those research activities are limited to his

ongoing, but temporary, training, then there will be

no prospective benefit from future research once that

training is complete.

The petitioner's teaching duties likewise appear to be

a function of his temporary role as a fellow at a

teaching hospital, and the assertion of a "ripple effect"

from passing on "advanced medical and diagnostic

procedures" would persuade only if the petitioner

http://www.leagle.com/decision/19942082860FSupp1222_11918





himself originated or significantly improved those

procedures. If the procedures existed before the

petitioner learned them, and fellows pass them along

to newer students as a matter of routine, then it is

arbitrary to attribute the "ripple effect" to the

petitioner rather than to the mentors who taught

those procedures to the petitioner”

NOV042014_01B5203.pdf

This case contains some very useful historical notes

and explanation of the development of the single

class of profession [Physicians] who have an optional waiver based on

their profession but it has strings attached. These

physicians must take jobs

within specified underserved areas or at

Veterans Administration facilities for a limited

period of time in order to get adjusted to lawful

permanent resident (LPR)

at which time they would be free to move on.

There is no specified NIW

for any other profession.


as a “Dual Language Immersion Teacher and

Research Assistant”.




whether the petitioner has established that a waiver of

the job offer requirement, and thus a labor

certification, is in the national interest.”

* * * * *

“The above assertions concern the intrinsic merit of

dual language immersion programs; they do not

establish that the benefit from the work of one such

instructor is national in scope. Also, apart from

establishing the significance of the occupation, the

petitioner must establish how she, individually,

qualifies for an exemption from the job offer

requirement that normally applies to professionals

such as her. …”

* * * * *

“Being among the first teachers to test a new program

is not a contribution comparable to actually

developing the program. Further, the record does not

show that the petitioner herself has made

modifications to the program, but rather has reported

issues that lead others to make those modifications.

An alien's job-related training in a new method,

http://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2014/NOV042014_01B5203.pdf




whatever its importance, cannot be considered to be

an achievement or contribution comparable to the

innovation of that new method. See NYSDOT, 22

I&N Dec. at 221 n.7.”

* * * * *

“Owing to subsequent events, the situation Ms. [___]

described is no longer hypothetical. USCIS records

show that successfully obtained a labor certification

on the petitioner's behalf, and used it as the basis for a

new petition seeking to classify the petitioner as a

professional under section 203(b)(3)(A)(ii) of the Act.

The director approved the petition on August 7,

2014, with a priority date of November 18, 2013.

Thus, the petitioner in this proceeding is the

beneficiary of an approved immigrant petition, and

was not displaced by the recruitment process that led

to labor certification. Because it is now a

demonstrable fact that labor certification did not

displace the petitioner, hypothetical assertions to the

contrary have no weight in this proceeding.”

* * * * *

“The writers of the above letters praised the

petitioner's contributions, but did not identify or

describe those contributions. Because all of the letters

are from [___], they are not first-hand evidence of the

application of the petitioner's work outside of that

district. The general claim that "other school districts"

use the results of the petitioner's work does not

establish the national scope or influence of the

petitioner's work. Going on record without supporting

documentary evidence is not sufficient for purposes

of meeting the burden of proof in these proceedings.

Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r

1998) (citing Matter of Treasure Craft of California,

14 I&N Dec. 190 (Reg'l Comrn'r 1972)).




The director denied the petition on January 16, 2014,

stating: "The [petitioner's] national interest waiver

request hinges on the assertion that her contributions

to the [___] dual language immersion program will be

widespread nationally." The director quoted some of

the submitted letters, and concluded: "nothing in the

record establishes that any schools outside of [___]

have benefitted from [the petitioner's] work."

The petitioner's legal brief on appeal does not, for the

most part, discuss the specifics of the petition.

Instead, the petitioner relies on the argument that the

director "applied an incorrect test for determining the

national interest." The petitioner notes that section

203(b)(2)(A) of the Act refers to members of the

professions holding advanced degrees "or" aliens of

exceptional ability, and asserts that the conjunction

"or" creates a meaningful distinction between the two

classifications.

The petitioner asserts that, because "both the statute

and the regulations make it clear that [alien of

exceptional ability and member of the professions

holding an advanced degree] are distinct

classifications that address very different situations.

There is not a scintilla of indicia that suggests the

national interest standard for these two classifications

is or should be the same." The petitioner, however,

has not established that there should be any

presumption that the national interest standard

should be different for the two classifications.

The petitioner's argument rests, in part, on the

wording of the regulation at 8 C.F.R. § 204.5(k)(4)(ii),

which "clearly refers only to 'exceptional ability' while

purposefully omitting references to aliens who are

members of the professions holding advance[d]




degrees." The petitioner asserts that this omission

"demonstrates that treating these distinctive categories

as one is not proper." The petitioner also claims: "By

clearly omitting members of the professions holding

advanced degrees or their equivalent from the

proposed rules and comment period, while having

full knowledge of this omission, violates the rule

making procedures of the APA [Administrative

Procedures Act]."

That regulation, as the petitioner acknowledges, was

promulgated in 56 Fed. Reg. 60897 (Nov. 29, 1991).

At that time, section 203(b)(2)(B) of the Act made the

waiver available only to foreign workers "in the

sciences, arts, or business." The statute included no

provision to waive the job offer requirement for

members of the professions. Therefore, the cited

regulation reflects the statute as it existed at the time.

The notice and comment requirements of the AP A

did not grant the Immigration and Naturalization

Service (INS) the authority to expand the availability

of the waiver on its own.

The regulation did not reflect any conscious effort to

create or imply separate national interest standards

for the two classifications; rather, it accurately

reflected that the law allowed the waiver only for one

of the two classifications.

After the promulgation of the above regulation, the

Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991 (MTINA), Pub.

L. 102-232, 105 Stat. 1733 (Dec. 12, 1991), amended

section 203(b)(2)(B) of the Act by inserting the word

"professions" after the word "arts," and thereby made

the national interest waiver available to members of

the professions holding advanced degrees. MTINA




made no further modifications to the national interest

waiver clause.

In contrast, section 5 of the Nursing Relief for

Disadvantaged Areas Act of 1999, Pub. L. 106-95,

113 Stat. 1312 (Nov. 12, 1999), amended the Act by

adding section 203(b)(2)(B)(ii) to create special waiver

provisions for certain physicians. Separate regulations

exist for those physicians at 8 C.F.R. § 204.12. Thus,

those physicians are subject to different waiver

provisions, but only because Congress specified those

provisions through legislation.

The petitioner asserts that members of the

professions holding advanced degrees are entitled to a

different, presumably lower, threshold for the

national interest waiver, but the petitioner cites no

authority to establish that threshold. NYSDOT makes no distinction between the two classifications,

because there is no statutory or regulatory justification

for such a distinction.

In 1995, INS published a proposed rule that would

have included new regulations relating to the national

interest waiver. See 60 Fed. Reg. 29771 (June 6,

1995). The petitioner submits public comments on

that proposed rule, submitted by the American

Immigration Lawyers Association. The proposed rule

was never finalized, and public comments on

proposed rules are not policy instruments of the

United States government; the comments are not

binding on USCIS employees.

As a precedent decision, however, NYSDOT is

binding on them. See 8 C.F.R. § 103.3(c). NYSDOT, in turn, has survived court challenges. See, e.g., Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL

https://casetext.com/case/talwar-v-us-immigration-and-naturalization




767018 (S.D.N.Y. July 9, 2001). Therefore,

NYSDOT remains binding precedent, and the

director had no discretion to disregard NYSDOT in

rendering the decision.”

NOV042014_02B5203.pdf

Once again we see a

physician trying for the

Standard NIW and failing. Also, once again it is a

relatively new physician.

I would think that a new physician would gladly work at a clinic in an underserved

area or a VA Hospital in order to gain valuable experience that would

make them more marketable later.

Maybe I am a fool?

Appeal Dismissed for this “Pediatric Hematologist and Oncologist”.

“… The director found that the petitioner qualifies for





United States.”

* * * * *

“The petitioner submitted an 82-page statement,

providing technical details about her work and

studies. The petitioner's own assessment of the

significance of her work cannot meet her burden of

proof. Going on record without supporting

documentary evidence is not sufficient for purposes

of meeting the burden of proof in these proceedings.

Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r

1998) (citing Matter of Treasure Craft of California,

14 I&N Dec. 190 (Reg'l Comm'r 1972)). Therefore,

the outcome of the petition depends on the evidence

that the petitioner has submitted to support her

claims.”

NOV042014_03B5203.pdf

This self-petitioner managed to be

“considered” an advanced

degree professional due to “progressive post-

Appeal Dismissed for this “Facilities Team Lead”.



(the Act), 8 U.S.C. § 1153(b)(2), as a member of the

professions with progressive post-baccalaureate

experience equivalent to an advanced degree, and as






baccalaureate work experience”.

This self-petitioner was

represented by someone who was suspended for six

months by the BIA to

match a six month suspension elsewhere.

i

As noted in the AAO Dismissal, that attorney was

later reinstated.i i

an alien of exceptional ability in the sciences, the arts,

or business. The petitioner seeks employment as a

facilities team lead, gas area, for [____], The

petitioner asserts that an exemption from the

requirement of a job offer, and thus of a labor

certification, is in the national interest of the United

States. The director found that the petitioner


professions holding the equivalent of an advanced

degree, but that the petitioner has not established


offer would be in the national interest of the United

States.

On appeal, the petitioner submits a legal brief, a

personal statement, and a copy of a previously

submitted a letter from a third party. Attorney [___]

represented the petitioner at the time he filed the

appeal on February 7, 2014. Later, on March 26,

2014, the Executive Office for Immigration Review

(EOIR) suspended Mr. [___] from practicing before

the Department of Homeland Security. The EOIR

later reinstated Mr. [___] but the October 14, 2014

reinstatement order reads, in part: "If the respondent

wishes to represent a party before the [Department

of Homeland Security], he must file a Notice of

Appearance (Form G-28), including any case in

which he was formerly counsel, prior to his

suspension." The record includes no new Form G-28

from Mr. [___] to renew his representation of the

petitioner. Therefore, we cannot recognize Mr. [___]

as the petitioner's attorney of record at this time. The

appellate brief will receive due consideration, but we

consider the petitioner to be self-represented in this

proceeding.”




NOV042014_04B5203.pdf

Once again we see a new physician seeking a

Standard NIW instead of the Physician NIW.

This time the new doctor simply wants to directly bill Medicaid and Medicare.

Hey doc, how about you go work at a free clinic or a VA Hospital for a few years

before you start overcharging Uncle Sam

and the various States and

Counties that administer the aforementioned aid

programs?

Yes, I am cynical!

Appeal Dismissed for this “Orthopedic Surgeon”.

“At the time he filed the petition, the petitioner was a

fellow at [_________], but he already had a job offer

to work at [______]; where he has since begun

working.”

* * * * *







* * * * *

“There is no blanket waiver for physicians who treat

patients on Medicaid and/or Medicare, and the

petitioner has submitted no evidence to show that his

work has resulted in nationally significant savings in

Medicaid or Medicare costs. The assertion that other

doctors would make poorer or later diagnoses,

resulting in greater costs, amounts to unsupported

speculation.

Regarding the claim that "the Department of Labor

does not allow for a combination of occupations

when filing a labor certification," the Department of

Labor regulation at 20 C.F.R. § 656.17(h)(3) states:

If the job opportunity involves a combination

of occupations, the employer must document

that it has normally employed persons for that

combination of occupations, and/or workers

customarily perform the combination of

occupations in the area of intended

employment, and/or the combination job

opportunity is based on a business necessity.

Combination occupations can be documented





by position descriptions and relevant payroll

records, and/or letters from other employers

stating their workers normally perform the

combination of occupations in the area of

intended employment, and/or documentation

that the combination occupation arises from a

business necessity.

The quoted regulation shows that "a combination of

occupations" is acceptable under certain specified

conditions. Furthermore, the record indicates that a

combination of clinical, teaching and research duties

is customary for medical school faculty members.

The petitioner has not shown that the Department of

Labor will not approve labor certification

applications for medical school faculty positions.”

NOV042014_05B5203.pdf

This one gets a little bit

closer to success but for the absence of a “track record”.

The third prong of the

NYSDOT NIW Test is person-centric, that is, it

relies upon the individual’s

attributes, characteristics, and especially the “track record” of the beneficiary

or self-petitioner.

Appeal Dismissed for this “Pediatric Cardiology Fellow”.







* * * * *

“While the national interest waiver hinges on















interest would thus be entirely speculative. Id.”

* * * * *

“The petitioner filed the Form 1-140, Immigrant

Petition for Alien Worker, on August 15, 2013, with

a 16-page supporting letter signed by Dr. [_____]

associate clinical professor at [_______]. Some of

this letter concerns the intrinsic merit and national

scope of research in pediatric cardiology, and the

reputation of UCSF as a research institution; these

issues are not in dispute in this proceeding.

Concerning the petitioner's work, Dr. [_____] stated:

[The petitioner] is doing nationally important

research work on clinical outcomes for

surgical procedures to correct congenital heart

defects in newborns and adults .... Specifically,

[the petitioner] is Principal Investigator in a

number of important research projects in this

area. Briefly, the three major projects are:

1. A major multi-center study ... of outcomes

of pulmonary artery angioplasty to treat

arterial stenosis (arterial narrowing) in children

and adults.

2. A study examining the long-term effects of

transcatheter closure of an Atrial Septal Defect

(ASD - a hole between the upper chamber[s]

of the heart) ... .

3. A study evaluating the use of Balloon Atrial

Septostomy (BAS) to stabilize newborns with a

malformation of the pulmonary artery and

aorta known as Transposition of the Great

Arteries (TGA).




Dr. [_____] provided technical details about the

studies identified above. Because the studies were

ongoing at the time of filing, they had not yet

produced findings for publication. Dr. [_____] also

described an earlier project in which the petitioner

studied "premature extubation (that is, removal of

infants from ventilators." She stated that the

petitioner's "research led to change of practice in

[the] neonatal intensive care unit where the study was

conducted, and has been published and presented at

scientific conferences." She did not indicate that the

petitioner's work, once published, led to procedural

changes at other hospitals.

Several times in her letter, Dr. [_____] claimed that

no more than ten physicians in the United

States begin training in pediatric interventional

cardiology each year, and she asserted that the

petitioner's inclusion in this small group is "evidence

of his excellence in his field." Dr. [____] identified

no source for the statistic. Going on record without

supporting documentary evidence is not sufficient for

purposes of meeting the burden of proof in these

proceedings. ….”

NOV042014_06B5203.pdf

Appeal Dismissed for this “Oriental Medicine

Specialist”.

“The sole stated ground for denial is that the

petitioner has not established that a waiver of the job

offer requirement, and thus a labor certification, is in

the national interest.”FN1

_______________

FN1

The petitioner submitted a job offer letter from

[___] California. [___] has reported the university's

closure, and the California Secretary of State has





Don’t just talk about the facts and information. You

MUST submit evidence to support any and all claims

or assertions made.

IF it ain’t documented

THEN it didn’t happen!

suspended the university's corporate status. Sources:

[_______] (printouts added to record September 18,

2014). The job offer, therefore, no longer appears to

be valid. This information does not directly affect the

outcome of the petition, because eligibility for the

national interest waiver rests on the qualifications of

the foreign worker seeking the waiver, and the

petitioner has not indicated that his ability to serve

the national interest depends on employment at

[___]. Therefore, this closure is not derogatory

evidence resulting in the denial of an otherwise

approvable petition.

“The petitioner asserted "there is increasing

evidence, proven research studies, and testimonials

from medical professionals on the positive effects of

Oriental Medicine and in treating certain types of

diseases," but the petitioner did not identify or

submit this evidence.”

NOV042014_07B5203.pdf

Unlike the director, AAO

found that the self-petitioner did NOT meet the antecedent regulatory

requirements. The Final Merits Determination

(FMD) was actually a moot

point. However, since the director below did make a mistake and did perform a FMD, so did AAO. AAO

also addresses the “comparable evidence” assertion in the FMD.

Appeal Dismissed for this “Violinist” who claimed to

be An Alien of Exceptional Ability in the Arts.

“…The director found that the petitioner failed to

establish that he qualifies for classification as an alien

of exceptional ability in the arts, and failed to

establish that an exemption from the requirement of

a job offer would be in the national interest of the

United States.”

“[T]he director found that the petitioner had met

three of the standards, thereby triggering the final

merits determination described in the Kazarian

decision. Therefore, we will consider the petitioner's

claims of comparable evidence in the context of the

final merits determination.”





NOV052014_01B5203.pdf

While the specialty angle might work IF the self-petitioner had a track

record as an influential

figure in the field, THEN this argument could work. However, here as with so

many others, this relatively new physician has not had

time to build a track record.

While it is within the realm of possibility that we may

encounter a “prodigy” once

in a while, judging from the number of failed attempts, those “prodigies” are few

and far between!

Appeal Dismissed for this “Physician Specializing in Neonatal-Perinatal Medicine”.




exceptional ability in the sciences, the arts, or

business. The petitioner seeks employment as a

physician specializing in neonatal-perinatal medicine.

At the time he filed the petition, the petitioner was a

fellow at the [___] U.S. Citizenship and Immigration

Services (USCIS) records identify his latest employer

as the University of Iowa, although USCIS records

include no corresponding change of address notice

from the petitioner. The petitioner asserts that an



of the United States.

Although the petitioner had claimed exceptional

ability, the director made an alternative finding that

the petitioner qualifies for classification as a member

of the professions holding an advanced degree. This

alternative finding does not affect the outcome of the

petition or the petitioner's eligibility for related

benefits, because section 203(b)(2) of the Act

encompasses both classifications. The director found

that the petitioner has not established that an

exemption from the requirement of a job offer

would be in the national interest of the United

States.”

* * * * *

“While the national interest waiver hinges on















interest would thus be entirely speculative. Id.”

NOV052014_02B5203.pdf

This is starting to get rather ridiculous with all these

“fellows” thinking that they somehow warrant special

treatment so early in their medical careers.

Appeal Dismissed for this “Pathologist”.



(the Act), 8 U.S.C. § 1153(b)(2), as a member of the

professions holding an advanced degree. The

petitioner seeks employment as a pathologist. At the

time he filed the petition on his own behalf, the

petitioner was a surgical pathology fellow at the

[_____]. He is currently a clinical fellow in

hematopathology at the [_____]. a division of the

[_____]. The petitioner asserts that an exemption

from the requirement of a job offer, and thus of a

labor certification, is in the national interest of the

United States. The director found that the petitioner


professions holding an advanced degree, but that the

petitioner has not established that an exemption



In the world of medical training, a “fellow” is an advanced student, very often given a “stipend” (a cash allowance for living expenses) or someone who has obtained

specified credentials for a specialty which is required for entry into a professional organization of like specialists. It appears that in either case applicable to our

rogues’ gallery of NIW hopefuls are recent graduates who simply don’t want to leave the United States for their country of origin.





NOV072014_02B5203.pdf

I am having difficulty in

figuring out why this municipality didn’t simply file for a labor cert. Some

filing decisions simply

boggle the mind.

Appeal Dismissed for this “Dentist”.

“…The petitioner, a city department of health and

human services, seeks to employ the beneficiary as a

senior public health dentist. The petitioner asserts


offer, and thus of a labor certification, is in the

national interest of the United States. The director

found that the beneficiary qualifies for classification

as a member of the professions holding an advanced

degree, but that the petitioner has not established


offer would be in the national interest of the United

States.”

NOV072014_03B5203.pdf

Ditto! Or is it?

If that statement is accurate, then there may be hope.

His evidence is primarily in

the form of letters from other doctors who simply

blurt forth conclusory statements that are not

supported by evidence. Also, some of the doctors are not cardiologists so are

probably just friends.

Appeal Dismissed for this “Physician Specializing In Cardiology”.

“On appeal, the petitioner states that his "very

impressive and extensive track record of national

contributions to the scientific community" warrants

approval of the national interest waiver.”

* * * * *

“The petitioner filed the Form I-140, Immigrant

Petition for Alien Worker, on September 13, 2012.

He indicated, on Part 6, line 7 of the petition form,

that his position was not permanent. This is

consistent with the inherently temporary nature of a

medical fellowship, which provides training in a given

medical specialty.”

The above linked cases were the most recently posted EB-2 NIW cases found on

the USCIS website as of this writing. I only looked at the two most recent months’

posted non-precedential cases that denied requests for EB-2 visas and Standard

National Interest Waivers under INA 203(b)(2)(B)(i).



http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title8-section1152&f=treesort&num=0&saved=%7CKHRpdGxlOjggc2VjdGlvbjoxMTUzIGVkaXRpb246cHJlbGltKSBPUiAoZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU4LXNlY3Rpb24xMTUzKQ%3D%3D%7CdHJlZX


III. Analysis

A. The Current EB-2 NIW Situation.

While some cases fail to meet the basic eligibility requirements for the underlying

EB-2 visa classification, when it come to the NIW, it appears to this writer and

observer that that vast majority of EB-2 NIW Denials and Dismissals are based on

the failure to meet the third prong of the NYSDOT NIW Test. To refresh your

memory (and mine) the NYSDOT NIW Test requires:

First, a petitioner must establish that the alien seeks employment in an area of

substantial intrinsic merit. Supra. at 217.

Next, a petitioner must establish that the proposed benefit will be national in

scope. Supra.

Finally, the petitioner seeking the waiver must establish that the alien will serve

the national interest to a substantially greater degree than would an available

U.S. worker having the same minimum qualifications. Supra. at 217-18.

The first prong is something that usually will leap from the page into your lap (or

head). The second prong usually only requires a logical statement or two of the

potential for national influence IF SUCCESSFUL. The third and final prong is the

one where most beneficiaries fail, or at least where the petitioner, often a self-

petitioner, fails to make a reasonable and logical case. That last prong is often

denied because of arguments that there is a labor shortage. That is the worst

approach because that is the main function of the PERM Labor Certification. If that

argument is your best, then simply file the PERM application!

Some may wonder WHY a waiver is sought when a labor certification will suffice.

I have noticed that sometimes the intending employer has been debarred by the

Department of Labor from filing due to various violations. Other times, there really

is no labor shortage and the intent is to artificially inflate the credentials of an average

skilled beneficiary for some other reason such as friendship, family relationships, or

bribes.

B. What Does NYSDOT Currently Offer EB-2 NIW Entrepreneurs?

In that the Secretary’s Memo placed an emphasis upon making clarifications

of, and indeed, an adjustment to, the eligibility requirements specifically to make the

NIW more readily attainable by “entrepreneurs”, it is critical to review the foot note


from NYSDOT that specifically addressed the subject matter of those who are

“essentially self-employed”. Anyway, footnote 5 from NYSDOT at 218 states:

“The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for

a labor certification. While this fact will be given due consideration in appropriate cases, the inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must demonstrate

that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.”

That is not to say that an entrepreneur will always be self-employed or would

always need a National Interest Waiver. That situation is not a certainty. Some

entrepreneurial-minded intending immigrants may find an employer or “partner”

who could file a labor certification application with the Department of Labor on

their behalf. The Secretary’s directive was for USCIS to clarify the standards by

which entrepreneurs, including: inventors, researchers, and founders of start-up

enterprises may be awarded a National Interest Waiver.

Initially, any and all potential self-petitioners, employer or partner petitioners,

and practitioners need to keep one essential factor foremost in their minds when

selecting documentary evidence, writing arguments for their briefs, and assembling

the application/petition package. That is the fact that their submission must present

so as to lead a reasonable adjudicator to the desired conclusion which is that this

person will indeed “serve the national interest to a substantially greater degree than could others in the same field”. It is also crucial that whoever is assembling the

evidence package must be mindful to be concise and stick to a clear context. As a

reminder the national interest waiver is available for “professionals holding advanced

degrees” or “aliens of exceptional ability” in the sciences, arts, professions, or

business. Those four basic contextual frameworks are but a starting point from

which to begin the case presentation6. Sloppy case preparation and poor case

presentation lead to more denials than approvals, more motions dismissed than

granted, and fewer appeals sustained than dismissed. For case prep tips, see here.

C. Moving Forward With the Reinterpretation of the NIW Criteria!

Given the Secretary’s directive and after examining a variety of recent NIW

cases, and especially the best example of a would-be entrepreneur [dated April 3,

6 Please see the deeper discussion on the need to “keep it in context” and an expanded statement of these contexts in

http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Br

ief%205.PDF [This is my Brief to AAO on applying Kazarian two-part analysis. The one most adopted by USCIS.]

http://www.ilw.com/articles/2014,0522-Whalen.pdf

http://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2012/Apr032012_01B5203.pdf

http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF

http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF


2012]7 which I wrote about previously, which is found here,

8 I’d like to offer some

suggestions as follows.

The third prong of the “NYSDOT NIW Test” is person-centric, that is, it relies

upon the individual’s attributes, characteristics, and especially the “track record” of

the beneficiary or self-petitioner. For an entrepreneur, we assuredly need to

approach this last prong differently. Hopefully, USCIS and AAO will modify the

NIW Test to allow a broader approach to meeting the last NIW criterion.

Heretofore, AAO has looked ONLY to a history of similar successes. In the case of

a new person just staring out, IF they have a great concept, perhaps backed up with

a patent or copyright, THEN maybe they should hold off from filing for an EB-2

NIW-based I-140 Petition and instead seek parole or an extended B-1 visa in order

to build some kind of record. In the alternative, USCIS and AAO may have to

look beyond “similar” past successes and accept “any” past successes as a basis for

granting a National Interest Waiver to an inventor, a researcher, or a “start-up”

entrepreneur. From 1998 through the present, AAO has been narrowly construing

the third prong and continually recites the following:

While the national interest waiver hinges on prospective

national benefit, the petitioner must establish that the alien's

past record justifies projections of future benefit to the

national interest. Id. [NYSDOT ] at 219.

For an “inventor”, the self-petitioner or beneficiary could make a showing

based on prior inventions that have seen success. However, an inventor has to start

somewhere with something. So, if the inventor is new at the task, a patent or

copyright (as applicable), might be persuasive to a degree. Some new inventors

might actually be proven innovators. Suppose someone has been working in the

field and has a track-record via their prior employment where their work-product

was owned by their employer. I believe that they should still have bragging rights

especially if they don’t have ownership and the financial gains associated with it. I

would hope that a substantiated (corroborated) resume would suffice but it would

be nice if a former (or current) employer were to acknowledge the contributions

made by the self-petitioner or beneficiary. So, a statement either in a letter, press

release, or news article or clip should be considered with all the other evidence.

7 http://www.uscis.gov/sites/default/files/err/B5%20-

%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Ex

ceptional%20Ability/Decisions_Issued_in_2012/Apr032012_01B5203.pdf 8 http://www.slideshare.net/BigJoe5/eb2-n iw-entrepreneur-guidance-10292012







For a “researcher”, the self-petitioner or beneficiary needs to demonstrate

that they have done at least one significant research project and/or study. It does not

have to be an earth-shattering breakthrough but is should shake its own niche at

least enough to get some recognition and therefore some kind of write-up. I am

talking about more than a thesis or term-paper. I am talking about getting results

published, or leading to a research grant, or significant post-graduate fellowship,

(meaning something truly special beyond the normal end-point of the education necessary for entry into a profession, sub-specialty, or a particular career-path). Lastly, if they have a body of work, then a bibliography should be included along

with the curriculum vitae.

For an “entrepreneur”, the self-petitioner or beneficiary could make a

showing based on prior businesses that have seen success. However, an

entrepreneur has to start somewhere with something. Remember that we are talking

about the EB-2 NIW and NOT the E-1 Treaty Trader, E-2 Treaty Investor, or the

EB-5 Immigrant Investor (or Entrepreneur). Keeping that in mind, we should still

look to something that they seem to have in common. They all had a plan for their

venture, while it is not always required that a formal written business plan be

presented, it is a very useful piece of evidence. Many entrepreneurs throughout the

world don’t have a formal written business plan and still achieve great success. With

that disclaimer duly stated, I am discussing necessary and useful (not legally

required) documentary evidence to support an EB-2 Immigrant Visa Petition and a

National Interest Waiver. A formal well-written business plan (BP) will go a very

long way towards convincing USCIS that they would be making the right choice for

good of the U.S. economy and hopefully its workforce in approving YOUR (as in,

your client’s) petition and waiver. For this BP, I would look partly towards making it

Matter of Ho compliant but it has to accomplish something beyond a

demonstration of sound business acumen. This EB-2 NIW Compliant BP is where

I urge you to make your case as best you can and address the NYSDOT Test,

giving great emphasis to the third and last prong. Once again, that prong is person-

centric and will come through in that part of the BP where the principal lays out

their credentials and discusses their knowledge, skills, and abilities (KSAs). For

more on KSAs, see here and here.

D. Changes That I’d Like To See

The first thing that USCIS, in cooperation with the State Department’s Consular Services-Visa Section, needs to do is implement the Public Interest Parole

(PIP) and/or long-term, multiple-entry, extended-stay, B-1 nonimmigrant visas

http://www.slideshare.net/BigJoe5/ksas-for-regional-centers-10062012

http://www.slideshare.net/BigJoe5/ksas-and-the-math-wiz-rc-dismissal


especially for Entrepreneurs who make a valid and well-supported assertion that

(s)he will attempt to become entrepreneurial as an inventor, researcher, and/or the

founder of a start-up enterprise, whether based on his or her own invention or

research, or simply based on a history of entrepreneurial success. These Intending Entrepreneurs should by and large be limited to EB-2 NIW prospects but could

eventually include intending EB-5 “Stand-Alone”-“Direct” investors who are true

entrepreneurs, specifically excluding, the virtually-passive “EB-5 Investors”. I know

that that will piss off many in the EB-5 Stakeholder Community but, I think it is the

most realistic outer limit that we’re likely to see from USCIS and State.

While the overwhelming vast majority of Regional Center (RC) affiliated EB-5

intending immigrants will be virtually passive limited partners or shareholders, most

of whom will simply plunk down money which will then be leant to a project

developer, a VERY FEW might actually be considered “true entrepreneurs”. Those

few might be deserving of at least the extended B-1 visa so as to be allowed to

monitor and direct their entrepreneurial investment. My position on “EB-5

Investments” also encompasses non-RC Groups where the EB-5 aliens are relatively

passive limited partners or minimally involved co-owners. I think they should only

get multiple entry B-1 visas for the principal investor only. PIP status should only

be for the likely EB-2 NIW (and the FEW qualifying EB-5) Entrepreneurs and their qualifying immediate family members.

IV. Conclusion:

It is not for me to dictate what course another must take. I can only make

suggestions. I hope that some of my suggestions are put to use and put to the test. I

also hope that others will add their voices to the chorus and help to reinterpret the

Standard National Interest Waiver (NIW) for EB-2 Immigrant Visa Petitions as

applied to: inventors, researchers, and founders of start-up enterprises. The U.S.

economy could definitely use the outside stimulus of both money and innovation.

Lastly, the U.S. labor force could most assuredly use more places to work. If you

made it this far, thanks for hanging in there!


V. About The Author

I tell you what you NEED to hear, not what you WANT to hear!

Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor,

Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207

Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line)

E-mail: [email protected] web http://www.slideshare.net/BigJoe5 or

http://eb5info.com/eb5-advisors/34-silver-surfer

DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring9. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent.

NAICS Code: 611430 Professional and Management Development Training

2012 NAICS Definition: 611430 Professional and Management Development Training

This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may

be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.

That’s My Two-Cents, For Now!

9 See: 15 U.S.C. §80b–2. (a)(11)

or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true

mailto:[email protected]

http://www.slideshare.net/BigJoe5

http://eb5info.com/eb5-advisors/34-silver-surfer

https://www.census.gov/cgi-bin/sssd/naics/naicsrch

http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true





ENDNOTES i There is only one BIA Attorney Discipline case posted that matches the

dates in the AAO Appeal Dismissal and here is the text with name left out.

On February 12, 2014, the respondent was suspended for six months

from the practice of law in the Virgin Islands, by the Supreme Court of

the Virgin Islands. Consequently, on March 13, 2014, the Department

of Homeland Security (the "DHS") initiated disciplinary proceedings

against the respondent and petitioned for the respondent's immediate

suspension from practice before the DHS. The Disciplinary Counsel for the

Executive Office for Immigration Review (EOIR) then asked that the

respondent be similarly suspended from practice before EOIR, including the

Board and Immigration Courts. The petition will be granted.

ORDER: The petition is granted, and the respondent is hereby

suspended from the practice of law before the Board, the Immigration

Courts, and the DHS pending final disposition of this proceeding. 8

C.F.R. § 1003.103(a)(2013); 8 C.F.R. § 292.3(c).

FURTHER ORDER: The respondent is directed to promptly notify, in

writing, any clients with cases currently pending before the Board, the

Immigration Courts, or the DHS that the respondent has been suspended

from practicing before these bodies.

FURTHER ORDER: The respondent shall maintain records to

evidence compliance with this order.

FURTHER ORDER: The Board directs that the contents of this notice

be made available to the public, including at Immigration Courts and

appropriate offices of the DHS.


iiHere is the text of the BIA’s reinstatement order with name omitted:

The respondent, who has been suspended from practice before

the Board, Immigration Courts, and the Department of Homeland

Security (the "DHS") for six months, has sought reinstatement to

practice. The respondent's request for reinstatement to practice will be

granted.

On July 23, 2014, the final order of discipline was entered against

the respondent. This resulted from the respondent's suspension from

the practice of law in the Virgin Islands, by the Supreme Court of the

Virgin Islands. The respondent's suspension was deemed to have

commenced on March 26, 2014, the date of our immediate suspension

order.

The respondent requests to be reinstated to practice before the Board,

the Immigration Courts, and the DHS. See 8 C.F.R. § 1003.107. The

DHS Disciplinary Counsel does not oppose the motion, observing that

the respondent has completed the period of suspension, and meets the

definition of attorney at 8 C.F.R. § 1101.l(f). The respondent will be

reinstated to practice.

ORDER: The respondent is reinstated to practice before the Board,

the Immigration Courts, and the DHS, as of the date of this order.

FURTHER ORDER: Because the respondent has been reinstated,

public notices regarding the respondent's suspension should reflect this

reinstatement.

FURTHER ORDER: If the respondent wishes to represent a party

before the DHS or Board, he must file a Notice of Appearance (Form G-28

or Form EOIR-27), including any case in which he was formerly counsel,

prior to his suspension.

national interest waiver aao dismissals october-november 2014 to date

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