dismissed EB-2 NIW Case: Medicine

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 5. 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician, seeks an immigrant visa petition as a member of the professions holding 
an advanced degree as set forth in section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2). In addition, he seeks a "national interest"" waiver from the requirement 
of a job offer by a U.S. employer. Section 203(b)(2)(8)(ii) of the Act provides that such a waiver 
shall be afforded to a physician who meets several conditions. including that the individual will work 
in an area with a shortage of health care professionals. 
The California Service Center approved the Form I-140, Immigrant Petition for Alien Worker. 
However, the Director of the Texas Service Center subsequently revoked the approval of the 
immigrant petition, finding that the Petitioner did not establish that he had an employer-employee 
relationship with as he attested at the time of filing. The 
Director further concluded that the Petitioner willfully misrepresented his intention of seeking 
employment with The Petitioner appealed the matter to us. and we dismissed the appea1.
1 
The matter is now before us on a joint motion to reopen and reconsider. With the motion , the 
Petitioner submits a brief and additional evidence, asserting that he did not engage in willful 
misrepresentation of material fact in presenting the petition. Upon review, we will deny the motion 
to reconsider, and we will grant the motion to reopen in part and deny it in part. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § I 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). 
With respect to the eligibility requirements for a national interest waiver, section 203(b) of the Act 
sets out this sequential framework: 
1 
See Matter of A-A-S-, ID# 462626 (AAO June 22, 20 17). 
Matter (?fA-A-S-
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualitied 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 benetit 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 ofjob offer-
(i) National interest waiver. Subject to clause (ii). the Attorney General 2 
may, when the Attorney General 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. 
(ii) Physicians working in shortage areas or veteran facilities. 
(I) In general. The Attorney General shall grant a national interest 
waiver pursuant to clause (i) on behalf of any alien physician with 
respect to whom a petition for preference classification has been 
filed under subparagraph (A) if-
(aa) the alien physician agrees to work full time as a physician 
in an area or areas designated by the Secretary of Health 
and Human Services as having a shortage of health care 
professionals or at a health care facility under the 
jurisdiction of the Secretary of Veterans Affairs: and 
(bb) a Federal agency or a department of public health in any 
State has previously determined that the alien physician's 
work in such an area or at such facility was in the public 
interest. 
2 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135. 2311 
(codified at 6 U .S.C. § 557 (20 12)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 LJ.S.C. § 542 note 
(2012); 8 LJ.S.C. § 1551 note (2012). 
2 
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Matter of A-A-S-
The implementing regulations at 8 C.F.R. § 204.12 specify that a physician must agree to work 
full time for an aggregate of five years, and set forth the evidentiary requirements to establish 
eligibility for the national interest waiver. Specifically, as relevant here, the provisions at 8 C.F.R. 
§ 204.12( c)( 1) provide that a petitioner must submit evidence with the petition relating to his 
intended employment arrangement, either as ''an employee·· or through his "own practice." If the 
physician will be an employee, he is required to submit a full-time employment contract covering the 
required five year period of clinical medical practice, or an employment commitment letter from a 
veterans' facility. The contract or letter must have been issued and dated within six months prior to 
the date the petition is filed. 8 C.F.R. § 204.l(c)(l)(i). Alternatively, ifthe physician will establish 
his own practice, he must provide a sworn statement committing to the full-time practice of clinical 
medicine for the required period, and describing the steps he has taken or intends to actually take to 
establish the practice. 8 C.F.R. § 204.1(c)(l)(ii). 
II. ANALYSIS 
A. Procedural Background 
As outlined in our previous decision, the Petitioner tiled the Form 1-140 petition in September 2007. 
stating that he intended to work full-time in a clinical medical practice for an aggregate of five years 
as an employee of He provided a copy of a full-time employment contract. dated November 
14, 2006, signed by his brother, on behalf of In November 2009. the 
Director approved the petition. 
The Petitioner held H-lB status authorizing his employment with when he tiled the instant 
petition. 3 In October 2013, U.S. Citizenship and Immigration Services (USCIS) revoked the H-1 B 
petition finding that the Petitioner was the sole owner and member of and therefore. the 
company did not establish that it was a U.S. employer having an employer-employee relationship 
with the Petitioner as is required by H-1 B regulations and labor condition application attestations. 
Upon revocation of the H-1 B petition, the Director sent a Notice of Intent to Revoke (NOIR) the 
instant petition. The Director explained that the Petitioner had stated he would be an employee of 
in accordance with 8 C.F.R. § 204.12(c)(l)(i), and that because USCIS had determined that no 
such employment relationship exists, the Form 1-140 petition would be revoked. The Director also 
found that the Petitioner "willfully misrepresented his intention of seeking employment with 
when he submitted an employment contract with signed by an unauthorized signatory.•· 
The Petitioner responded to the NOIR. and the Director subsequently revoked the approval of the 
Form I-140. On appeal, we upheld the Director's decision. affirming her determination that the 
Petitioner had not proven his eligibility as an employee of under 8 C.F.R. § 204.12(c)(l )(i). 
Specifically, we found that the Petitioner had not demonstrated an employer-employee relationship 
3 The Petitioner was the Beneficiary of a Form 1-129 Petitioner for Nonimmigrant Worker. Notice of Approval I 
filed by 
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Matter of A-A-S-
with at the time of filing because he did not establish that the company would exercise control 
over his work. We also noted that the Petitioner had not provided an employment contract that was 
dated and issued within six months prior to filing the petition and valid for the required five year 
period, or established that he was an ''employee" of at the time of filing. In addition. in 
response to the Petitioner's argument that he "could have just as easily"" presented the required 
evidence to show self~employment under 8 C.F.R. § 204.12(c)(l)(i). we explained that he had not 
provided such evidence and therefore did not establish that he met the initial tiling requirements for 
the immigration benefit, either as an employee or as a self-employed worker. 
Lastly, we determined that the Petitioner had "not met his evidentiary burden of proving that he did 
not willfully misrepresent material facts.'· Specifically. we found the evidence insufficient to 
support the Petitioner's contention that was authorized to sign on behalf of and 
therefore that submission of a contract signed by him was not a willful misrepresentation. 
In the brief accompanying the motion, the Petitioner does not contest our findings regarding his 
eligibility for a physician national interest waiver. The sole issue the Petitioner 
addresses on motion 
is whether he willfully misrepresented his intention of seeking employment with through 
submission of an employment contract signed by an unauthorized signatory. Accordingly. we will 
limit our analysis to that issue. 
On motion, the Petitioner argues that he did not engage in willful misrepresentation of material fact 
because he had a good faith belief in "the legality of his delegating signing authority as he did, and 
the legality of the employer/employee arrangement presented." He maintains that "a 
company director, was always, and continues to be, authorized to sign on behalf of ' The 
Petitioner further contends that he followed the advice of previous counsel. in drafting 
company operating agreement and his employment contract. Furthermore. the Petitioner 
asserts that the record shows that both he and had a sincere and genuine "belief as to 
the legality of appointing to sign on behalf of the company... He cites to Matter of 
Tijam, 22 I&N Dec. 408, 425 (BIA 1998) and Matter of Healy and Goodchild. 17 I&N Dec. 22. 28 
(BIA 1979) which define the term "willfully'' as knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. 
B. Motion to Reopen 
In support of his motion to reopen, the Petitioner offers new evidence to support the contention that 
was authorized to sign the employment contract on behalf of In part. he 
provides an affidavit in which he specifically attests that he. in his capacity as sole member and 
principal of had designated a director. to be an authorized signor. The motion 
also includes a resubmitted affidavit from indicating that she previously represented 
the Petitioner with respect to this 
petition. She further attests: "We included !the Petitioner's] 
contract with to provide appropriate medical services, with signing on 
behalf of the company, as an authorized agent of the company, as authorized by [the Petitioner] as 
the company head." Lastly, states that ''simply because the claimed relationship did not 
4 
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Matter<~[ A-A-S-
meet a legal definition of employer/employee'' was not a basis to conclude that the Petitioner 
willfully misrepresented a material fact. 
On motion, the Petitioner also offers his Forms W-2. Wage and Tax Statements. from 2007 
through 2016. While the evidence does not establish his eligibility as an employee of under 
8 C.F.R. § 204.12(c)(l)(i), we find the new evidence. taken together with documentation already in 
the record , sufficient to demonstrate that the Petitioner did not engage in willful misrepresentation 
by providing a contract signed by Accordingly, we withdraw the finding of willful 
misrepresentation ofmaterial fact with respect to this petition. 4 
C. Motion to Reconsider 
The Petitioner's arguments in his motion to reconsider are limited to the finding of willful 
misrepresentation which, as discussed above. we are withdrawing based on new evidence. 
Accordingly, the motion to reconsider is moot. Regardless, the arguments on motion do not 
establish that our appellate findings were based on an incorrect application of the law. regulation. or 
users policy , nor does the motion demonstrate that our latest decision was erroneous based on the 
evidence before us at the time of the decision. 
III. CONCLUSION 
The Petitioner's motion does not demonstrate that our previous decision was based on an incorrect 
application of law or policy, and it does not establish that he meets the requirements of 8 C.F.R . 
§ 204.12( c )(I )(i) to demonstrate his eligibility for a physician national interest waiver. However , the 
finding of willful material misrepresentation of material fact relating to this petition is withdrawn. 
ORDER: The motion to reopen is granted in part and denied in part. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofA-A-S- , ID# 800888 (AAO Dec. 5, 2017) 
4 Our finding relates only to the petition before us, and we make no determination regarding evidence of willful 
misrepresentation of a material fact in any other proceedings involving the Petitioner. Willful misrepresentation of a 
material fact in other proceedings may render the Petitioner inadmissible to the United States. "Any [foreign national] 
who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a 
visa, other documentation. or admission into the United States or other benefit provided under [the Act] is inadmissible." 
Section 212(a)(6)(C) of the Act. In the context of this visa petition, our determination is a ·'finding of fact" and not an 
admissibility determination.