Matter of N-C-M-, Respondent

Cite as 25 I&N Dec. 535 (BIA 2011)


Interim Decision #3718



Matter of N-C-M-, Respondent

Decided June 10, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals



To be eligible for late initial registration for Temporary Protected Status (“TPS”),

an applicant filing as the “child of an alien currently eligible to be a TPS registrant” must

establish only that he or she qualified as a “child” at the time of the initial registration period, not at the time the application was filed.



FOR RESPONDENT: Frank P. Sprouls, Esquire, San Francisco, California



FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott A. Eash, Assistant Chief Counsel



BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.

PAULEY, Board Member:



The respondent, a native and citizen of El Salvador, appeals from an Immigration Judge’s August 27, 2009, decision denying his applications for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2006), withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2006), and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.

GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988). The respondent also appeals the Immigration Judge’s determination that he is ineligible for Temporary Protected Status (“TPS”), for which he submitted a late registration that was denied by the Department of Homeland Security (“DHS”) in March 2007. The appeal will be dismissed in part and sustained in part, and the record will be remanded to the Immigration Judge for further proceedings.

We review an Immigration Judge’s findings of fact, including credibility findings, to determine whether they are “clearly erroneous.” See United States v. National Ass’n of Real Estate Boards, 339 U.S. 485, 495 (1950) (noting that a factual finding is not “clearly erroneous” merely because there are two permissible views of the evidence); 8 C.F.R. § 1003.1(d)(3)(i) (2011).We review de novo all questions of law, discretion, and judgment and any other issues in appeals from decisions of Immigration Judges. Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); 8 C.F.R. § 1003.1(d)(3)(ii).

The respondent’s appeal related to his asylum claim is governed by amendments to the Act brought about by passage of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 (“REAL ID Act”). Among other things, under the REAL ID Act, an asylum applicant must prove that his race, religion, nationality, particular social group, or political opinion was or will be at least one central reason for the harm and threats suffered in the past or feared in the future. See Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007).

The respondent’s asylum claim is controlled by our precedents and those of the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises.1

As we noted above, the DHS’s U.S. Citizenship and Immigration Services (“USCIS”) denied the respondent’s application for TPS in March 2007, finding that he had failed to prove his residence in the United States prior to February 13, 2001, and his continuous physical presence since March 9, 2001. In reviewing this denial, the Immigration Judge agreed that the respondent had not shown that he was eligible for TPS benefits, but she reached this conclusion for a different reason. The Immigration Judge observed that the regulations provide that, to be entitled to late initial registration for TPS, an applicant must be a “spouse or child of an alien currently eligible to be a TPS registrant.” 8 C.F.R. § 1244.2(f)(2)(iv) (2011). Because the respondent was 24 years old in 2006 when he filed for TPS benefits, the Immigration Judge concluded that when he filed for benefits, he no longer had the status of a “child” under section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) (2006), and therefore did not satisfy the criteria for late registration under the regulations. The Immigration Judge found that under 8 C.F.R. § 1244.2(g), which provides that a person must file his or her application for TPS benefits within 60 days of the “expiration or termination of conditions described in paragraph (f)(2) of this section,” the respondent was bound to file his late TPS registration within 60 days of his 21st birthday, which was on July 15, 2003.

On appeal, the respondent argues that the Immigration Judge erred in his interpretation of the regulations, which state that late registrants may file their application for benefits during any “subsequent extension of such designation if at the time of the initial registration period . . . [t]he applicant is a spouse or child of an alien currently eligible to be a TPS registrant.” 8 C.F.R. § 1244.2(f)(2)(iv). The respondent contends that by adding the words “at the time of the initial registration period,” the regulations contemplate only that the late applicant must be a “child” of a TPS-eligible alien, as that term is defined under the Act, at the time of the original registration period, in this case, between March 9, 2001, and September 9, 2002. According to the respondent, when the USCIS adjudicated his application for TPS benefits, it “took it as a given” that he met the applicable test for being a “child” and denied the application for lack of evidence of physical presence and residence. The respondent therefore suggests that the Immigration Judge should not have reached the issue whether he was properly considered a “child” for purposes of the regulations.

We first reject the argument that the Immigration Judge exceeded her authority in reaching the question whether the respondent was eligible to apply for late registration for TPS based on his “aging out” of the statutory definition of a “child” for purposes of the applicable regulations. We recently clarified that in reviewing denials of TPS benefits, the Immigration Judge employs a de novo standard of review. Matter of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009). Nothing in the applicable regulations governing review of TPS applications in Immigration Court would limit the Immigration Judge’s authority in the manner that the respondent suggests.

Nevertheless, we agree with the respondent’s argument that the Immigration Judge erred in her interpretation of the regulations. The applicable part of the regulation provides as follows:

Except as provided in §§ 1244.3 and 1244.4, an alien may in the discretion of the director be granted Temporary Protected Status if the alien establishes that he or she:

. . . .

(f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the Federal Register, or

(2) During any subsequent extension of such designation if at the time of the initial registration period:

(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;

(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;

(iii) The applicant is a parolee or has a pending request for reparole; or

(iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

. . . .

(g) Has filed an application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section.



8 C.F.R. § 1244.2 (emphasis added).2

Therefore, the regulations regarding late registration require an alien to establish that at the time of the initial registration period, he either had a familial relationship with another TPS-eligible alien, 8 C.F.R. § 1244.2(f)(2)(iv), or was in a specified immigration status or had a pending application or request for a certain status or relief, 8 C.F.R. §§ 1244.2(f)(2)(i)–(iii). On the face of the regulation, the relationship or specified “status” must exist “at the time of the initial registration period.” 8 C.F.R. § 1244.2(f)(2). Paragraph (g) deals with the “expiration or termination” of “conditions” described in paragraph(f)(2) and essentially extends the deadline for late registration to allow applicants who no longer fall into the categories listed in paragraph (f)(2) to file within 60 days of the “expiration” or “termination” of their classification.

The Immigration Judge interpreted paragraph (g) as covering both the immigration status categories listed in 8 C.F.R. § 1244.2(f)(2)(i) through (iii) and the familial relationships listed in paragraph (f)(2)(iv). She therefore reasoned that the late registration application must be filed within 60 days of the date the applicant ceased to be a “child” for purposes of the Act. We find that this interpretation of the applicable regulations was in error, based on the regulatory language chosen by the Attorney General, the regulatory history, and the guidance provided by USCIS to aliens seeking late initial registration for TPS benefits.

First, we observe that the two general bases for allowing late registration are materially different, in that one category of allowable late registration derives from maintenance of a valid immigrant or nonimmigrant status at the time of the initial registration period, and the other derives from family relationships. In fact, the regulatory history of this rule indicates that the “spouse or child” exception in 8 C.F.R. § 1244.2(f)(2)(iv) was not even contemplated at the time the interim rules were first presented for comment. Rather, at first the regulations were intended only to address the situation of aliens who maintained “valid immigrant or nonimmigrant status during the initial registration period” and did not register initially for TPS because such protection was not needed on account of their valid status. Temporary Protected Status, Exception to Registration Deadlines, 58 Fed. Reg. 58,935, 58,936 (Nov. 5, 1993) (interim rule with request for comments) (Supplementary Information).

The comment period brought several changes to the interim rule, including (1) an extension of the grace period (after termination of a valid status) within which an alien could file for late registration, (2) a listing of the various ways in which an alien would be considered to maintain “valid” immigrant or nonimmigrant status for purposes of late filing for TPS, and (3) the inclusion of spouses and children as among those would could register for benefits at a later date. See Temporary Protected Status, Exception to Registration Deadlines, 63 Fed. Reg. 63,593 (Nov. 16, 1998) (final rule).

The parent-child relationship referred to in 8 C.F.R. § 1244.2(f)(2)(iv) is notably different from the exceptions relating to valid immigrant or nonimmigrant status. While the “termination” or “expiration” provisions of paragraph (g) have clear applicability to the expiration of a defined period of visa applicability, voluntary departure, parole, or status, the regulations give no indication that the Attorney General intended that those provisions would apply to the late application of a person who was a qualifying “child” of a TPS-eligible alien at the time of the initial registration period. See Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999). In fact, the regulation does not reflect any consideration by the Attorney General to defining a window during which an otherwise eligible child of a TPS-eligible alien must file his or her application. Rather, the final regulation recognizes, in response to comments, that the former Immigration and Naturalization Service “agree[d] . . . that . . . minors whose parents registered for TPS, but did not register any or all of their children, should be eligible for . . . late initial registration.” Temporary Protected Status, Exception to Registration Deadlines, 63 Fed. Reg. at 63,594 (Supplementary Information). We therefore find that 8 C.F.R. § 1244.2(g) does not apply to a child who seeks late initial registration for TPS benefits.

We note that section 101(b)(1) of the Act defines a “child” as an unmarried person who is under the age of 21. Based on the above analysis, we find that the regulations provide a clear date on which to measure a child’s age for purposes of qualifying for TPS benefits through a parent who registered during the initial registration period. The regulations require that a late registrant be a “child” only “at the time of the initial registration period,” not at the time when the application for late initial registration is filed. 8 C.F.R. § 1244.2(f)(2).

Guidance offered by the USCIS to TPS applicants in a fact sheet regarding late initial registration is consistent with our interpretation of the regulatory language. See USCIS, DHS, Guidance on Late Initial Registration for TPS Applicants, available at http://www.uscis.gov (last updated May 10, 2010). The fact sheet states that “[t]o qualify for a late initial TPS registration application, you must . . . demonstrate that at the time of the initial registration period of the TPS designation . . . you . . . were the spouse or child of an alien currently eligible to be a TPS registrant.”

We find nothing in the regulations or elsewhere that requires a late initial registrant to maintain “child” status up to and until the time that the late registration application is filed. Accordingly, the respondent’s appeal from the Immigration Judge’s determination that he is ineligible for TPS benefits will be sustained. The respondent has the right to a de novo review of the stated reasons for the USCIS denial of that application, which the Immigration Judge did not conduct. Matter of Lopez-Aldana, 25 I&N Dec. 51. We will therefore remand the record to the Immigration Judge for further consideration of the respondent’s application for TPS benefits. The respondent’s appeal from the Immigration Judge’s denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture will be dismissed.

ORDER: The respondent’s appeal from the Immigration Judge’s denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture is dismissed.

FURTHER ORDER: The respondent’s appeal from the Immigration Judge’s denial of his application for TPS benefits is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.



1 In regard to his asylum claim, the respondent testified that he fled El Salvador because he feared criminal gangs such as Mara Salvatrucha. In El Salvador, he and family members were extorted, threatened, beaten, and robbed by gang members. None of the incidents was reported to the police. Neighbors told the respondent that gang members were looking for him and showed a gun, which he interpreted as a threat to kill him. A cousin who was assaulted and robbed by gang members relocated within El Salvador, and no evidence was presented about recurring problems with gangs since the relocation.

The Immigration Judge denied the asylum and withholding of removal claims because she found that the respondent had not submitted adequate evidence that he was a member

of a particular social group. We agree with this finding. Victims of gang violence and unwilling gang recruits do not describe a particular social group under the precedent of this Board and the Ninth Circuit. See Barrios v. Holder, 581 F.3d 849 (9th Cir. 2009); Arteaga v. Mukasey, 511 F.3d 940, 944-46 (9th Cir. 2007); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579, 588 (BIA 2008). To the extent that the respondent claims that he was targeted by the gangs because of his express or implied antigang political opinion, we note that the record does not include adequate evidence to support such a claim. The Immigration Judge’s findings of fact indicate that the respondent’s encounters with the gangs sprang first from their desire to rob him and, thereafter, if anything, from their “personal grudge” because the respondent resisted their “robbery attempts.” We agree with the Immigration Judge that neither of these motivations relates to the respondent’s political opinion or otherwise supports a nexus to a protected ground. INS v. Elias-Zacarias, 502 U.S. 478 (1992). Because the respondent failed to satisfy the lower burden of proof applicable to asylum, he has necessarily failed to establish eligibility for withholding of removal, which carries a higher burden of proof. Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 218 (BIA 2010). The respondent also did not submit adequate evidence to show a clear probability of torture at the instigation of, or with the consent or acquiescence of, current government officials or persons acting in an official capacity.

I-130 Notice of Intent to Deny in New York

Hashmi-Rajah Factors Before Denying Continuance

SIMON v. HOLDER
EUSTACE SIMON, Petitioner
v.
ERIC HOLDER, Attorney General, Respondent.

No. 10-2411.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) July 12, 2011.

Opinion Filed: August 17, 2011.

Before: SLOVITER, FUENTES, and GARTH, Circuit Judges.

OPINION
GARTH, Circuit Judge.

Eustace Simon petitions this Court for review of the Board of Immigration Appeals' (BIA) denial of his motion for reconsideration. We will grant Simon's petition for review, and hold that the BIA abused its discretion in failing to apply the principles set forth in In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009), to Simon's case. Accordingly, we will vacate the order of removal, and will remand the matter to the BIA to reconsider Simon's motion for a continuance under Hashmi and In re Rajah, 25 I. & N. Dec. 127, 130 (BIA 2009).

I.

Simon is a native and citizen of Guyana who entered the U.S. in 1994 on a tourist visa with permission to remain for six months, and remained in the U.S. after that period. Simon is presently the beneficiary of an approved I-130 immediate relative petition, and an approved I-140 work petition.
Simon first appeared in Immigration Court in Newark, New Jersey, on February 16, 2006. The Immigration Judge granted an initial continuance to allow Simon to obtain counsel and prepare his case, and thereafter granted three more continuances. At a hearing on July 26, 2007, Simon provided proof that he had applied for adjustment of status based on the approved petitions, but acknowledged that no visa numbers were immediately available. Simon's attorney asked for a continuance, which the Immigration Judge granted. The Immigration Judge stated that if there was no visa number available on the next court date, he would not grant any further continuances, and informed counsel that once a case had been pending for two years he would start to get "little reminders" about the need to decide the delayed matter. (A. 28.)

On February 7, 2008, the Immigration Judge held the fifth and last hearing in Simon's case. At this time, there was still no visa number available to Simon, and Simon sought a further continuance or administrative closure of the removal case until a visa number was available. In addition to proof of his pending adjustment of status application, he provided evidence of his family ties in the U.S., his good moral character, community involvement, and financial information. Counsel for DHS refused to agree to administrative closure of the case, and the Immigration Judge refused any further continuances and ordered Simon deported to Guyana.

Simon appealed the denial of his motion for a continuance to the BIA, which dismissed the appeal on September 23, 2009. The BIA upheld the Immigration Judge's decision and found that "future availability of a visa number is speculative and insufficient to establish good cause for a continuance." (A. 122.) The BIA did not address its recent decision in Hashmi, filed in April 2009.

On October 21, 2009, Simon filed a motion to reconsider, arguing that the BIA committed error by failing to address Hashmi. On April 19, 2010, the BIA denied Simon's motion to reconsider, holding that the Hashmi factors were not applicable because Simon could not establish prima facie eligibility for adjustment: i.e., he could not establish that a visa was immediately available. (A. 2.)

On May 18, 2010, Simon filed his petition for review with this Court.

II.

In Hashmi, filed April 22, 2009, the BIA had set out several factors that immigration judges should consider when evaluating whether to grant a motion for a continuance where the alien had a pending I-130 petition, which, if approved, would render him prima facie eligible for adjustment of status. 24 I. &. N. 785, 787 (BIA 2009).

In Hashmi, the BIA set forth five criteria to be considered in evaluating whether to grant a motion to continue removal proceedings pending an adjustment of status application premised on a pending visa petition: "(1) [T]he DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors." Id. at 790. Factors relevant to determining the fourth criteria "include, but are not limited to, the existence of family ties in the United States; the length of the respondent's residence in the United States; the hardship of traveling abroad, and the respondent's immigration history." Id. at 792.

Significantly, Hashmi further stated that though the Immigration Judge could consider procedural factors, compliance with case completion goals was not a proper factor to consider. Id. at 793-94. Additionally, the number and length of prior continuances "are not alone determinative." Id. at 794. Finally, the BIA noted that the Immigration Judge should "articulate, balance, and explain all these relevant factors, and any others that may be applicable." Id.

In In re Rajah, decided November 12, 2009, the BIA extended the Hashmi factors to employment-based visa petitions, form I-140s. 25 I. & N. Dec. at 135-36. The BIA also reemphasized that immigration judges should not rely upon their completion goals in determining whether good cause exists to grant a continuance. Id. at 136. Ultimately, the focus is on the overall "likelihood of success on the adjustment application." Id. at 130.

Hashmi indicates that the third criteria, "statutory eligibility for adjustment of status"—of which visa eligibility is a part—is one of five criteria to be considered in the calculus of whether to grant a motion for a continuance. See 24 I. &. N. at 791. Therefore, visa availability should never be the one and only factor considered in a particular case. See id. In Rajah, the BIA further indicated that visa availability was one aspect to be considered when looking at the third criterion. See 25 I. & N. Dec. at 132; see also id. at 136 (An individual "may not be able to show good cause for a continuance because visa availability is too remote," but "the Immigration Judge must evaluate the individual facts and circumstances relevant to each case.") (emphasis added).1

Visa availability is one part of the Hashmi-Rajah analysis. Once an immigration judge considers all of the Hashmi-Rajah factors, including visa availability, he or she has the discretion to deny a continuance where visa availability is too speculative; but this should only be done after all of the factors are considered. The BIA, in this context as in others, must follow its own precedents, unless it makes a reasoned determination to change or adapt its policy. See Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002) (The BIA "acts arbitrarily if it departs from its established precedents without `announcing a principled reason' for the departure.") (internal citations omitted).

In Simon's case, the Immigration Judge relied upon the remoteness of visa availability and upon timing considerations—his "little reminders," and the fact that previously he had granted four continuances—to deny Simon's motion. The BIA upheld the Immigration Judge's denial largely based upon the remoteness of visa availability. Neither the Immigration Judge nor the BIA ever analyzed Simon's motion for a continuance pursuant to the Hashmi-Rajah requirements.

Subsequently, the BIA stated in its order denying Simon's motion for reconsideration that Hashmi did not apply because Hashmi had a visa immediately available to him, whereas Simon did not. However, as we have indicated, visa unavailability is to be considered in conjunction with the other Hashmi-Rajah factors. The BIA, having established the principles in Hashmi and Rajah for granting continuances, must apply those principles. See Johnson, 286 F.3d at 700. The Hashmi-Rajah factors must be considered every time an alien files a motion for a continuance based on an application for adjustment of status premised on a pending or approved I-130 or I-140 petition.

III.

We conclude that the BIA abused its discretion in denying Simon's motion for reconsideration and in refusing to apply the principles of Hashmi and Rajah to Simon's case. We therefore grant the petition for review, we vacate the removal order and the order of the BIA which denied Simon's motion for reconsideration, and we remand to the BIA for further proceedings consistent with this opinion. If necessary, the BIA should remand to the Immigration Judge for his findings.


Footnotes

1. Although this court suggested in Khan v. Att'y Gen., 448 F.3d 226 (3d Cir. 2006), that the unavailability of a visa alone may be sufficient to support an immigration judge's refusal to continue proceedings, Simon's petition is factually distinguishable from Khan. At the time Khan requested a continuance of his removal proceedings, Khan's wife's labor certificate had not yet been approved and no petition had been filed on his behalf. Id. at 229. Further, in deciding Khan, this Court did not yet have the benefit of the BIA's precedential opinions in Hashmi and Rajah setting forth the factors immigration judges should consider when adjudicating motions to continue.

Cancellation of notice to appear 8 CFR 239.2

§ 239.2   Cancellation of notice to appear.

(a) Any officer authorized by §239.1(a) to issue a notice to appear may cancel such notice prior to jurisdiction vesting with the immigration judge pursuant to §3.14 of this chapter provided the officer is satisfied that:

(1) The respondent is a national of the United States;

(2) The respondent is not deportable or inadmissible under immigration laws;

(3) The respondent is deceased;

(4) The respondent is not in the United States;

(5) The notice was issued for the respondent's failure to file a timely petition as required by section 216(c) of the Act, but his or her failure to file a timely petition was excused in accordance with section 216(d)(2)(B) of the Act;

(6) The notice to appear was improvidently issued, or

(7) Circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.

(b) A notice to appear issued pursuant to section 235(b)(3) of the Act may be canceled under provisions in paragraphs (a)(2) and (a)(6) of this section only by the issuing officer, unless it is impracticable for the issuing officer to cancel the notice.

(c) Motion to dismiss. After commencement of proceedings pursuant to 8 CFR 1003.14, ICE counsel, or any officer enumerated in paragraph (a) of this section, may move for dismissal of the matter on the grounds set out under paragraph (a) of this section.

(d) Motion for remand. After commencement of the hearing, ICE counsel, or any officer enumerated in paragraph (a) of this section may move for remand of the matter to district jurisdiction on the ground that the foreign relations of the United States are involved and require further consideration.

(e) Warrant of arrest. When a notice to appear is canceled or proceedings are terminated under this section any outstanding warrant of arrest is canceled.

[62 FR 10366, Mar. 6, 1997, as amended at 68 FR 35276, June 13, 2003]

EB-2 Immigrant Visa for Entrepreneurs - Questions & Answers

Employment-Based Second Preference Immigrant Visa Category
Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category

Questions and Answers

Q1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
A1. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2).  The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).

Q2. What is the EB-2 Immigrant Visa Category?
A2. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:

• Members of the professions holding advanced degrees or their equivalent, and
• Individuals 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.

Q3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A3. No, not every individual with an advanced degree will qualify.  It must be demonstrated that the occupation is a profession.  The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.  Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A4. Yes.  An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
• Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
• Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
• Petitioning employer has received an individual labor certification from the Department of Labor; and
• Entrepreneur meets all the specific job requirements listed on the individual labor certification

Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A5. Yes.  An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
• Entrepreneur will be working in the sciences, arts, or business
• Entrepreneur has exceptional ability in the sciences, arts, or business
• Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
• Petitioning employer has received an individual labor certification from the Department of Labor; and
• Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Q6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A6. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers. 

Q7. How is exceptional ability defined?
A7. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q8. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A8. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii).  The criteria are:

(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability.  This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.  For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q9. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A9. Yes.  8 CFR 204.5(k)(3)(iii), states:

If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above.  Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification.  USCIS will take into account the totality of the circumstances when reviewing the evidence provided.  

When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted.  For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

Q10. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A10. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit.  For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.

As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States.  It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)?  And if so, what is it?  Can an entrepreneur qualify for a NIW?
A11. Yes.  A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.  Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.  

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes.  The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No.  Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW.  In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary.  The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States. 

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history.  However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). 

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances.  Footnote 5 in the decision 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…[T]he 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.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?
A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit.  It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications.  In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. 

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope.  For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation.  Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.  As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.  An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.  NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.”  The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.  For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Travel with I-751 Waiver Pending - No Joint Petition - 8 CFR 216.4(a)(6)

(6) Termination of status for failure to file petition . Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the United States. In such proceedings the burden shall be on the alien to establish that he or she complied with the requirement to file the joint petition within the d esignated period. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was good cause for the failure to file Form I-751 within the required time period. If the joint petition is filed prior to the jurisdiction vesting with the immigration judge in removal proceedings and the director excuses the late filing and approves the petition, he or she shall restore the alien's permanent residence status, remove the conditional basis of such status and cancel any outstanding notice to appear in accordance with § 239.2 of this chapter. If the joint petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion by the alien and the Service. (Amended 5/23/94; 59 FR 26587 ) (Revised effective 4/1/97; 62 FR 10312 ) 

Notice of Intent to Deny Deadline 30 days - 8 CFR 103.2(b)(8)

(8) Request for Evidence; Notice of Intent to Deny --(i) Evidence of eligibility or ineligibility . If the evidence submitted with the application or petition establishes eligibility, USCIS will approve the application or petition, except that in any case in which the applicable statute or regulation makes the approval of a petition or application a matter entrusted to USCIS discretion, USCIS will approve the petition or application only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establish es ineligibility, the application or petition will be denied on that basis. (Paragraph (b)(8) revised effective 6/18/07; 72 FR 19100 )

(ii) Initial evidence . If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.

(iii) Other evidence . If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the application or petition for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the application or petition and the basis for the proposed denial, and require that the applicant or petitioner submit a response wi thin a specified period of time as determined by USCIS.

(iv) Process . A request for evidence or notice of intent to deny will be in writing and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twel ve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.

National Initiative to Combat Immigration Services Scams

WASHINGTON—The U.S. government unveiled a multi-agency, nationwide initiative to combat immigration services scams. The Departments of Homeland Security (DHS) and Justice (DOJ) and the Federal Trade Commission (FTC) led this historic effort.

This initiative targets immigration scams involving the unauthorized practice of immigration law (UPIL), which occurs when legal advice and/or representation regarding immigration matters is provided by an individual who is not an attorney or accredited representative.

“We are dedicated to protecting vulnerable immigrants from those who seek to exploit them,” said U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas. “Through our sustained outreach, enforcement and education efforts, and our close collaboration with our federal, state, and local partners, we will provide the communities we serve with the help needed to combat this pernicious problem.”

This initiative is set upon three pillars—enforcement, education and continued collaboration— designed to stop UPIL scams and prosecute those who are responsible; educate immigrants about these scams and how to avoid them; and inform immigrants about the legal immigration process and where to find legitimate legal advice and representation.

“This coordinated initiative targets those who prey on immigrant communities by making promises they do not keep and charging for services they are not qualified to provide,” said Tony West, Assistant Attorney General for the Civil Division of the Department of Justice. “We are attacking this problem both through aggressive civil and criminal enforcement and by connecting qualified lawyers with victims who are trying to navigate a complicated immigration system.”

The Department of Justice, through United States Attorneys’ Offices and the Civil Division’s Office of Consumer Protection Litigation, is investigating and prosecuting dozens of cases against so-called “notarios.” In the last year, DOJ has worked with investigators at the FBI, ICE, and USCIS, and with state and local partners, to secure convictions—with sentences up to eight years in prison and forfeiture and restitution of over $1.8 million. This is in addition to the many actions at the state and local levels that have been filed against individuals and businesses engaged in immigration services scams.

ICE has also long been pursuing immigration services fraud cases in part through its 18 Document and Benefit Fraud Task Force offices across the country. In a recent case in West Palm Beach, Fla., ICE Homeland Security Investigations agents arrested an individual on May 26 who had posed as an attorney and processed more than 3,000 fraudulent immigration applications.

“Notarios and other illegal immigration service providers take advantage of unsuspecting immigrants trying to navigate the immigration system,” said ICE Director John Morton. “ICE will continue to work with our federal, state and local partners to combat notario fraud and protect the integrity of the legal immigration system.”

Meanwhile, FTC has made it easier for consumers to alert law enforcement about these scams by creating a new Immigration Services code in the Consumer Sentinel Network, its online consumer complaint database. “This is a central location for consumers to report complaints and for our law enforcement partners to find and share information about scams,” said FTC Commissioner Edith Ramírez.

Sentinel, as the network is called, is a secure online database that holds more than 6 million consumer fraud complaints. Shared with more than 2,000 law enforcement entities including ICE, DOJ and now USCIS, it has become the primary repository for complaints involving allegations of immigration services scams. Sentinel serves as an investigative tool for USCIS Fraud Detection and National Security officers, and bolsters communication between organizations on immigration services scam-related cases.

The initiative’s education component focuses on empowering immigrant communities to avoid unscrupulous individuals and businesses engaged in UPIL. USCIS’s efforts will be primarily aimed at providing immigrants with the information they need to make informed choices when seeking legal advice and representation on immigration matters.

USCIS has unveiled a new brochure, a poster, public service announcements for use on radio and in print publications, billboard and transit ads, and a new Web resource center that includes a video. All printed materials are available in English and Spanish, and materials in 12 additional languages are available online. To bolster this outreach effort, DOJ’s Executive Office for Immigration Review (EOIR) and FTC is producing and distributing educational materials for different populations that may be affected by immigration services scams.

As part of the initiative’s emphasis on providing qualified legal assistance to this vulnerable population, EOIR’s Recognition and Accreditation program, DOJ, USCIS, and FTC are working together to increase the number of EOIR-recognized organizations and accredited representatives, particularly in underserved areas. Organizations and representatives seeking to provide lawful immigration services must be recognized by EOIR.

“EOIR is hard at work to increase access for our government partners, nonprofit organizations, and individuals in immigration proceedings,” said EOIR Director Juan P. Osuna. “Through a combination of efforts, including reporting fraud, educating the public and dedicated outreach, we are bolstering our efforts toward growing a force of legitimate legal services providers and getting rid of fraudsters.”

EOIR is improving its Recognition and Accreditation Program by increasing communication with the public, providing easier application processing, and giving timely, accurate information to the public regarding which organizations have representatives available to represent individuals in proceedings.

DOJ’s Civil Division and Access to Justice Initiative are involved in an effort to train more attorneys to handle the cases of immigration fraud victims.

August 2, 2011 - Press Conference Transcript: USCIS Announces Initiatives to Promote Startup Enterprises and Spur Job Creation: Part III

Coordinator: Once again, if you’d like to ask a question, please press star 1 and clearly record your name when prompted. The next question comes from (Lalee Cha) with Press Trust of India. Your line is open.

Lalee Cha: Thank you doing this call. I have one question. This is about the code that you have for (unintelligible) and you know most of time, they are targeting our coming from India and China. So how does that versus the other forms, the announcement that you’ve made today. How does address that question?

Alejandro (Ali) Mayorkas: I’m - I think I - please correct me if I don’t capture your question accurately. I believed that you asked the efforts that we’re making now. So for example, with respect to the EB2 visa classification, which is a classification that includes foreign workers with advanced degrees and individuals of exceptional ability.

Lalee Cha: Yes.

Alejandro (Ali) Mayorkas: Art, sciences or business, how does that effect individuals who want to access the EB2 visa program if they happen to be from China or India, for example, where the visas might not be current?

Lalee Cha: Yes, and you have the certain percentage of people coming - you have a restriction on that. Only certain percentage of people from 1 particular county you can intake very year, right?

Alejandro (Ali) Mayorkas: Yes. You know that is not an agency-created quota. Those are by operation of law.

(Lalee Cha): Yes.

Alejandro (Ali) Mayorkas: And in fact the visa availability is still applicable. So in fact if somebody is seeking an EB2 visa but and the individual is from China, the individual will be able to exercise that visa when the visa is current. And with respect to China and India, that visa is at present not current.

Lalee Cha: Yes so that (unintelligible).

Alejandro (Ali) Mayorkas: So there would be. There would...

Lalee Cha: 7 so if you want to attract the talent from these 2 countries which are (unintelligible) China said in his congressional meeting last week that that needs to be changed. So do you agree with him?

Alejandro (Ali) Mayorkas: I’m sorry, you’re question?

Lalee Cha: The (unintelligible) is now the ambassador to China, he said in his n a meeting last week that that percentage - that quota restriction on the countries like India and China need to be waived off.

Alejandro (Ali) Mayorkas: I think the president has spoken to this quite strongly and consistently that an evaluation of visa availability - an evaluation of visa laws is something that should be undertaken in the context of comprehensive immigration reform to ensure that in fact we are paving the path for the best and the brightest from wherever they might come around the world.

Lalee Cha: Yes, but once - if you’re targeting to - if you’re planning to attract talent from these 2 countries, then how come you’re reforms today are not able - will not - how they going to help people from these 2 countries to apply EB2 if they are not current?

Alejandro (Ali) Mayorkas: Well the fact of the matter is that there are people who come from these countries who might be able to avail themselves of the EB2 visa program while the visas are not current today. That does not mean that a month from now, 2 months from now whatever time period and what we are doing is we are working within the constraints of the laws that currently exist and paving the avenues that are available to us.

Lalee Cha: Thank you so much.

Alejandro (Ali) Mayorkas: Thank you.

Coordinator: The next question comes from Betty Lynn , World Journal. Your line is open.

Betty Lin: Hello. Thank you, Ali. Did you just talk about you are going to find proposals for EB5 in 30 days? Could you elaborate on that?

Alejandro (Ali) Mayorkas: Yes, thank you very much, Betty. So we published a - previously published a proposal for the reform of the EB5 program. And we published it in proposed for because we wanted to benefit from community expertise and community experience. And we solicited comments from the community and I believe that we received approximately 177 comments in response to our proposal.

We have taken into consideration those comments. We have been and continue to study those comments and we intend to shortly publish our final reformed process. And we intend to begin the implementation of that reform process, the enhanced process within 30 days.

Betty Lin: So you’re going to publish that in 30 days and implement in 30 days?

Alejandro (Ali) Mayorkas: We’re going to begin - we’re going to begin implementing the enhancements in 30 days. And we have not set a discreet timetable for publication of the final proposal. We’re working vigorously on that.

Betty Lin: Okay, thank you.

Alejandro (Ali) Mayorkas: Thank you, Betty.