remanded EB-2 NIW Case: Medicine

identifYingdata deletedto
Pl\lve:ntclearly unwarranted
JDVUJoDofpetIoaaJ priVacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
SRC 00 005 53080
Office: TEXAS SERVICE CENTER Date: AUG 02 2001
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~1f~;;?
f't-Robert P. ""~~nn, Chief
Administrati ve Appeals Office
www.uscis.gov
DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition.
Subsequently, the director issued a notice of intent to revoke the approval of the petition (NaIR). In a
Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for
Alien Worker (Form 1-140). The director rejected a subsequent appeal as untimely and then reaffirmed
that decision on motion. The matter is now before the Administrative Appeals Office (AAO) on
certification. The director's decision will be withdrawn and the petition will be remanded for further
action and consideration: issuance of a new NaIR to the correct address and attorney that fully
addresses the eligibility issues discussed in this decision.
Section 205 of the Act, 8 U.S.C. § 1155, states that the Secretary of Homeland Security "may, at any
time, for what he deems to be good and sufficient cause, revoke the approval of any petition
approved by him under section 204."
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board
of Immigration Appeals has stated:
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa
petition is properly issued for "good and sufficient cause" where the evidence of
record at the time the notice is issued, if unexplained and unrebutted, would warrant a
denial of the visa petition based upon the petitioner's failure to meet his burden of
proof. The decision to revoke will be sustained where the evidence of record at the
time the decision is rendered, including any evidence or explanation submitted by the
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N Dec. 450 (BIA
1987)). Finally, the realization by the director that the petition was approved in error may be good
and sufficient cause for revoking the approval. Id.
The petitioner seeks classification pursuant to 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. The petitioner left blank the area of
proposed employment on the petition but the petitioner held a medical degree at that time. The original
brief references research as well as clinical experience but the record contains no evidence that the
petitioner had authored any medical research articles as of the date the petition was filed. 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 initially approved
the petition.
The petitioner was interviewed in 2004 regarding his subsequent Form 1-485 Application to Register
Permanent Residence or Adjust Status. At that time, it was revealed that he was a student in a Master's
degree program. On April 28, 2006, the director issued the NaIR, concluding that the petitioner was
no longer intending to continue in the area of work deemed in the national interest. The NaIR was not
sent to the petitioner's last known address, as required by 8 C.F.R. § 103.5a(a)(l).
Page 3
On June 5, 2006, the director revoked the approval of the petition based on the petitioner's failure to
respond to the NaIR. The NOR was also not sent to the petitioner's last known address pursuant to
8 C.F.R. § 103.5a(a)(l). The notice stated that an appeal could be filed within 15 days, although 18
days are allowed if service is by mail. 8 C.F.R. § 103.5a(b). We note that while the regulation at
8 C.F.R. § 205.2(d) allows only 15 days in which to appeal a notice of revocation, the regulation at
8 C.F.R. § 103.5(a)(l) allows 30 days, 33 if service is by mail, to file a motion to reopen or reconsider.
8 C.F.R. § 103.5a(b). Moreover, the regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) provides that an
untimely appeal must be treated as a motion if it meets the requirements of a motion. On July 3, 2006,
less than 30 days after the NOR, the petitioner filed a Form 1-290B, Notice of Appeal to the
Administrative Appeals Office. Despite the title of this form, it is the same form on which a petitioner
must file a motion. 8 C.F.R. § 103.5(a)(iii). In support of this filing, counsel asserted that the petitioner
never received the NaIR or final NOR and requested that the NaIR be reissued, allowing the petitioner
to respond.
On July 26, 2006, the director rejected the appeal as late without considering it as a motion or even
whether or not it met the requirements of a motion, specifically, whether the NaIR and NOR were
properly served upon the petitioner per 8 C.F.R. § 103.5a(a)(1). Cf 8 C.F.R. § 103.5(a)(2)(3)(iii)
(expressly providing that a motion to reopen a case denied due to abandonment may be based on the
assertion that the request for additional evidence was sent to the wrong address.)
On September 5,2006, the petitioner filed a motion to reopen and/or reconsider the director's rejection
of the late appeal. Counsel noted that while the director correctly issued the notice to deny the
concurrently filed Form 1-485 Application to Register Permanent Residence or Adjust Status, the
revocation of the approval of the petition was sent to the wrong address.
On May 29, 2007, the director dismissed the motion, concluding that no error had occurred in the
issuance of the notice of intent to revoke. The director certified this decision to this office pursuant to
the regulation at 8 C.F.R. § 103.4(a)(l) and afforded the petitioner 30 days in which to supplement the
record pursuant to the regulation at 8 C.F.R. § 103.4(a)(2). In response, counsel submitted a brief and
the petitioner's statement chronicling his change of address actions with Citizenship and Immigration
Services (CIS) and his history of representation.
Part 1 of t~on September 24, 1999 lists the petitioner's address in care ofhis attorney at
the time, _ The Form 0-28, Notice of Appearance, for this attorney lists the petitioner's
address in Saudi Arabia. The record contains a more recent Form 0-28 for attorney dated
September 16, 2004. This notice lists the petitioner's address as his current address in Sacramento.
Significantly, the record also contains a December 14, 2004 letter from the petitioner advising that he
no longer had an attorney and providing his current address in Sacramento. Citizenship and
Immigration Services used this address for all notices regarding the petitioner's adjustment application.
Despite these notices of the petitioner's new address, contained in the record and utilized in the
adjustment proceeding, the director issu~ces regarding the self-petition, the NOIR and
the NOR, to the petitioner's first attorney, _
In light of the above, we withdraw the director's claim in the May 29, 2007 decision that CIS had not
erred. The issuance of the NOIR to the petitioner's initial attorney when he had previously submitted a
Form G-28 for a new attorney with a new address and subsequently (but still prior to the issuance of the
NOIR) filed a change of address advising that he was not represented by counsel, was in error. Thus,
we must remand the matter to the director for proper issuance of a new NOIR to current counsel and the
petitioner. When issuing the new notice, however, the director shall consider the following.
Section 203(b) of the Act states in pertinent part that:
(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 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 ofjob offer.
(i) ... the Attorney General may, when the Attorney General deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
It appears from the record that the petitioner seeks classification as an alien of exceptional ability and as
an advanced degree professional. If the director finds that the petitioner is an advanced degree
professional however, the issue of whether the petitioner is also an alien of exceptional ability is moot.
We note that the exceptional ability classification normally requires an alien employment certification
approved by the Department of Labor (DOL). The director should not conclude that meeting the
regulatory requirements for that classification in and of itself warrants a waiver of the alien employment
certification in the national interest. Matter ofNew York State Dep't ofTransp., 22 I&N Dec. 215,222
(Comm. 1998).
The remaining issue is whether the petitioner has established that a waiver of the job offer requirement,
and thus an alien employment certification, is in the national interest. Neither the statute nor pertinent
regulations define the term "national interest." Additionally, Congress did not provide a specific
definition of the phrase, "in the national interest." The Committee on the Judiciary merely noted in its
Page 5
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, 101st Cong., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part:
The Service believes it appropriate to leave the application of this test 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.
Matter of New York State Dep't. ofTransp., 22 I&N Dec. at 215, has set forth several factors which
must be considered when evaluating a request for a national interest waiver. First, it must be shown
that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that
the proposed benefit will be national in scope. 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.
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective"
is used 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.
It is imperative that the petitioner provide more information regarding his initial plans and evidence that
he is pursuing the same plans. We note the following two issues:
• If the petitioner intends to work as a physician, the director may wish to inquire how this work
would provide benefits that are national in scope. The director should carefully consider the
language set forth in Matter ofNew York State Dep 't ofTransp., 22 I&N Dec. at 217, n.3.
• If the petitioner intends to work as a researcher, the director may wish to inquire as to whether,
as of the date of filing, the petitioner had a track record of success with some degree of
influence on the field as a whole. Id. at 219, n.6.
Notably, the petitioner must demonstrate his eligibility as of the date of filing. See 8 C.F.R.
§ 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). The petitioner also may
41:' •
not make material changes to a petition that has already been filed in an effort to make an apparently
deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175
(Comm. 1998). Thus, the petitioner may not rely on employment he will not be qualified to perform
until he completes of his Master's studies, begun after the petition was filed.
Therefore, this matter will be remanded for service of a new NOIR to the petitioner at his correct
address and to his current attorney and which takes into account the eligibility issues raised above. As
always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the
Act, 8 U.S.C. § 1361.
ORDER: The director's decision is withdrawn. The petition is remanded to the director for
further action in accordance with the foregoing and entry of a new decision which,
regardless of outcome, is to be certified to the Administrative Appeals Office for
review.