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Cases & Decisions
Administrative Appeals Office (AAO)
AAO Finds Gross Business Income Is Not Evidence of Ability to Pay
(455 KB - 11/14/2008)
In a non-precedent decision, AAO upholds the denial of a traditional labor certification, finding that the employer was unable to pay the proffered wage at the time the ETA 750A was filed under both a net income and a net current assets analysis. Dismisses employer’s contention that gross business income is evidence of ability to pay. AILA Doc. No. 08111431.
AILA Doc. No. 08111431.
AAO Finds Room and Board Compensation Qualifies as Remuneration for Religious Worker
(1739 KB - 10/14/2008)
A non-precedent AAO decision withdrew the denial of an I-360, finding that a religious worker who receives material support as compensation for work on behalf of a church is “employed” for immigration purposes. Decision courtesy of Donald Patterson. AILA Doc. No. 08101470.
AILA Doc. No. 08101470.
AAO Finds that a Single Act of Soliciting Prostitution on One's Own Behalf Is Not a Crime Involving Moral Turpitude
(430 KB - 10/2/2008)
In a non-precedent decision, AAO finds that the 212(h) waiver applicant was convicted of only one crime involving moral turpitude, which qualifies under the petty offense exception to inadmissibility. Also found that a single act of soliciting prostitution on one’s own behalf does not fall within INA §212(a)(2)(D)(ii). Decision courtesy of Victoria Gentile. AILA Doc. No. 08100265.
AILA Doc. No. 08100265.
AAO Finds Petitioner Unable to Reconcile Inconsistencies or Provide Probative Evidence in Abuse Claim
(4482 KB - 9/22/2008)
In a non-precedent decision, AAO upholds CO’s finding that the petitioner failed to establish that he was battered or subjected to extreme cruelty by his former spouse during their marriage. AILA Doc. No. 08092261.
AILA Doc. No. 08092261.
AAO Finds that Favorable Factors Acquired after Removal Proceedings Begin Carry Less Weight
(3440 KB - 9/17/2008)
AAO dismisses appeal of a denied I-212 waiver application for an applicant seeking relief under INA §212(a)(9)(a)(iii). Finds that the applicant’s spouse, son and approved I-130 are “after-acquired equities” that are accorded less weight in the exercise of discretion. Concludes favorable factors are outweighed by multiple immigration violations. AILA Doc. No. 08091775.
AILA Doc. No. 08091775.
AAO Finds Petitioner Did Not Establish Employer or Agent Relationship with H-1B Teacher
(3558 KB - 9/5/2008)
AAO non-precedent decision upholds denial because petitioner did not establish the existence of a relationship with the beneficiary as an employer or an agent. The petitioner did not provide employment contracts or submit an itinerary of services and engagements. Supposed timely evidence submitted without a postmarked mailing receipt was disregarded. AILA Doc. No. 08090566.
AILA Doc. No. 08090566.
AAO Finds G-4 Has Until 22nd Birthday to Accrue Presence to Meet SIV Requirement
(701 KB - 8/28/2008)
In an non-precedent decision, AAO sustains appeal of a denied special immigrant visa petition for a G-4, finding that the applicant’s residence and presence in the U.S. between the day he reaches age 5 and the day he reaches age 22 may be considered in assessing whether he has met the residency requirement under INA § 101(a)(27)(I)(i)(I). AILA Doc. No. 08082860.
AILA Doc. No. 08082860.
AAO Withdraws Approval of H-2B for Peakload Need Welders
(1818 KB - 8/25/2008)
In a non-precedent decision, AAO withdraws the approval of an H-2B petition for three peakload need welders and remands. AAO finds insufficient evidence that at the time of filing there was a contractual commitment between the petitioner and its client to use the H-2B welders for the period stated in the petition. AILA Doc. No. 08082565.
AILA Doc. No. 08082565.
AAO Upholds Denial of EB-5 Petition Lacking Evidence of Investment
(2310 KB - 8/19/2008)
In a non-precedent decision, AAO upholds denial of EB-5 petition. It notes that the definition of “invest” at 8 CFR § 204.6(e) excludes debt arrangements where the entrepreneur loans funds to the enterprise, and also that if a promissory note is submitted as evidence, the assets securing the note must belong to the petitioner and be identified. AILA Doc. No. 08081967.
AILA Doc. No. 08081967.
AAO Unpublished Decision on L-1B Specialized Knowledge, Qualifying Relationship, Effect of Agency Memos
(3486 KB - 8/19/2008)
In a 43-page unpublished decision, the AAO discusses L-1B specialized knowledge, qualifying relationships, new offices, and the effect of agency memoranda on the AAO. AILA Doc. No. 08081964.
AILA Doc. No. 08081964.
AAO Remands Because USCIS Failed to Issue Denial to Attorney of Record
(176 KB - 8/14/2008)
In a non-precedent decision, AAO remands finding that the final certification was improperly issued. Upon receiving no response to a NOID, the denial was issued to the petitioner, but not to the attorney of record as required by 8 CFR § 292.5. AILA Doc. No. 080081461.
AILA Doc. No. 08081461.
AAO Finds USCIS Must Issue All Notices to Attorney of Record
(190 KB - 8/14/2008)
In a non-precedent decision, AAO remands the petition because a NOID was issued to prior counsel despite the fact that subsequent counsel had already properly filed an appearance to represent the petitioner. AILA Doc. No. 08081460.
AILA Doc. No. 08081460.
AAO Remands Religious Worker Petition Because of Financial Discrepancies
(5242 KB - 7/28/2008)
In a non-precedent decision, AAO withdraws denial of petition for special immigrant religious worker, but finds petition cannot be approved because of contradictions regarding housing, and fragmentary evidence about compensation. Notes that doubt cast on any aspect of proof may lead to a reevaluation of the reliability or remaining evidence. AILA Doc. No. 08072871.
AILA Doc. No. 08072871.
AAO Addresses Calculating Ability to Pay
(467 KB - 7/21/2008)
AAO non-precedent decision upholds denial of skilled worker petition, finding that the petitioner had not established that it had the ability to pay the proffered wage as of the priority date. AAO concludes that net income and net current assets are two different methods of demonstrating ability to pay and cannot be combined for a cumulative sum. AILA Doc. No. 08072170.
AILA Doc. No. 08072170.
AAO Concludes Filing of Re-entry Permit Requires Physical Presence
(106 KB - 7/21/2008)
In a non-precedent decision, AAO upholds denial of an application for a re-entry permit where the form was filed after the applicant’s date of departure. Applicant argued that he was trying to extend his expired travel document. AAO notes that there is no exception for the physical presence requirement at the time of filing. AILA Doc. No. 08072169.
AILA Doc. No. 08072169.
AAO Finds Exceptional Hardship for U.S. Citizen Children
(603 KB - 6/9/2008)
In a non-precedent decision, AAO sustain appeal of denied 212(e) waiver application, finding that the applicant’s 3 U.S. citizen children would suffer exceptional hardship if their mother were to return to the Philippines alone, or if they were to relocate with her. Decision courtesy of Amy Novick. AILA Doc. No. 08060963.
AILA Doc. No. 08060963.
AAO Finds 3 + 1 Degree Equivalency for EB-3 Indian Science Teacher
(365 KB - 6/3/2008)
In a non-precedent decision, AAO holds that an Indian one-year Bachelor of Education following a three-year Indian BS or BA degree is the foreign academic equivalent of a US bachelor's degree. Decision courtesy of Bruce Allen. AILA Doc. No. 08060362.
AILA Doc. No. 08060362.
AAO Sustains I-212 Waiver Appeal
(629 KB - 6/2/2008)
In a non-precendent decision, AAO finds applicant was not issued a notice of reinstatement of the removal order. Sustains I-212 waiver appeal, finding the favorable factors outweigh the negative ones in the case. AILA Doc. No. 08060260.
AILA Doc. No. 08060260.
AAO Notes that Documents Need a Certified Translation to be Probative
(63 KB - 5/19/2008)
AAO upholds denial of an immigrant visa petition for classification as a scientist and business development manager of extraordinary ability. It noted that a 17-year-old award fails to show sustained acclaim, that documents need a certified translation, and that a patent must be accompanied by evidence of its contribution to the field. AILA Doc. No. 08051970.
AILA Doc. No. 08051970.
Corporate Banker Fails to Meet Extraordinary Ability Criteria, Comparable Evidence is Precluded
(182 KB - 5/14/2008)
AAO upholds denial of EB-11 petition in corporate banking marketing and cross-selling. The beneficiary did not meet any of the ten criteria at 8 C.F.R. §204.5(h)(3). Finds comparable evidence, allowed under 8 C.F.R. §204.5(h)(4), is precluded because there is no indication that the ten criteria do not readily apply to the beneficiary’s occupation. AILA Doc. NO. 08051464.
AILA Doc. No. 08051464.
AAO Finds Exceptional Hardship in Unrecognized Marriage under Islamic Law and Country Conditions
(491 KB - 4/16/2008)
In a non-precedent decision, AAO sustains appeal of denied 212(e) waiver application, finding that the U.S. citizen spouse would suffer exceptional hardship were he to relocate to Egypt with his spouse, where their marriage would not be recognized under Islamic law, or, if in the alternative, his spouse returned to Egypt without him. AILA Doc. No. 08041670.
AILA Doc. No. 08041670.
AAO Finds Exceptional Hardship in Country Conditions, Threat to Surgical License and More
(504 KB - 4/16/2008)
In a non-precedent decision, AAO sustains appeal of denied 212(e) waiver application, finding that the applicant’s U.S. citizen, surgeon spouse would suffer exceptional hardship if her husband were to return to Venezuela alone, or if she were to relocate with him. AILA Doc. No. 08041661.
AILA Doc. No. 08041661.
AAO Finds Denial Issued Prior to Timely Filed RFE Response
(74 KB - 4/15/2008)
In a non-precedent decision, AAO finds the H-1B petition was denied prior to the petitioner’s timely response to an RFE. AILA Doc. No. 08041568.
AILA Doc. No. 08041568.
AAO Sustains Appeal of H-1B Petition for Self-Employed Beneficiary of Start-Up
(246 KB - 4/14/2008)
An AAO non-precedent decision finds that a corporation has a separate legal identity from its owner, even if it is owned and operated by a single person. Also finds that the proffered position is a specialty occupation, despite the fact that the beneficiary may undertake administrative tasks as the sole proprietor. AILA Doc. No. 08041470.
AILA Doc. No. 08041470.
AAO Approves Indian EB2
In a non-precedent decision, AAO approves an EB2 immigrant petition involving a beneficiary holding a 3-year bachelor’s degree and a 2-year master’s degree from India. Ron Wada provides commentary regarding the import of the decision. AILA Doc. No. 08030370.
AILA Doc. No. 08030370.
AAO Finds Adopted Child Must be Lawfully Admitted & Take Oath for Citizenship Certificate
(66 KB - 2/27/2008)
An AAO non-precedent decision finds that although the adopted applicant child, who lives abroad with her U.S. Citizen father, fulfilled most of the requirements of INA § 322, she must be lawfully admitted and take an oath of allegiance prior to her 18th birthday to be eligible for a certificate of citizenship. AILA Doc. No. 08022769.
AILA Doc. No. 08022769.
AAO Upholds Denial of EB-5 Petition for Trust Fund Beneficiary/Restaurateur
(130 KB - 2/26/2008)
AAO non-precedent decision upholds the denial of an EB-5 petition because the petitioner failed to show the lawful source of funds, that she would be involved in the management of the business, and that the investment was in an employment generating entity. AILA Doc. No. 08022662.
AILA Doc. No. 08022662.
AAO Finds Record Lacks Detail of Extreme Hardship for Schizophrenic, Unemployed Husband
(56 KB - 2/22/2008)
AAO non-precedent decision finds that a 212(a) waiver applicant failed to show that her husband, who is schizophrenic, unemployed and unable to care for their daughter, suffers beyond that which is, unfortunately, normal in such circumstances. The record lacked detail about the effect of the wife’s absence on her husband’s condition. AILA Doc. No. 08022270.
AILA Doc. No. 08022270.
AAO Finds Insufficient Evidence of Fiancé Rendezvous Prior to Petition Filing
(43 KB - 2/22/2008)
A non-precedent AAO decision upholds the denial of a K-1 visa petition in the absence of substantiating documentation that the petitioner and beneficiary had met within the two years preceding the filing of the petition. Undated photographs and the petitioner’s personal calendar for the period in question were insufficient documentation. AILA Doc. No. 08022268.
AILA Doc. No. 08022268.
Non-Precedent AAO Decision Concludes Dental Research Assistant is a Specialty Occupation
(80 KB - 2/22/2008)
AAO finds that the proffered position is a specialty occupation because it requires the beneficiary to perform duties normally performed by a licensed dentist. As the record did not show that the beneficiary possessed a license, AAO remands the decision for a determination of the beneficiary’s qualifications. AILA Doc. No. 08022260.
AILA Doc. No. 08022260.
AAO Non-Precedent Decision Addresses Importance of PHS Review in 212(g) Waiver Case
(71 KB - 2/20/2008)
AAO sustains appeal of 212(g) waiver application, finding that USCIS may not deem the applicant’s mental health status to be a negative factor in evaluating a waiver application when PHS has no objection to the applicant’s admission, and there is not any current documentation that the applicant’s mental health poses a threat. AILA Doc. No. 08022074.
AILA Doc. No. 08022074.
AAO Upholds Denial of P-3 Extension for Chinese Opera Performers
(53 KB - 2/19/2008)
Non-precedent AAO decision concludes that the petitioner failed to establish that the beneficiaries had no intention of abandoning a foreign residence, and that they would be in the U.S. solely to perform, teach or coach under a culturally unique program. AILA Doc. No. 08021970.
AILA Doc. No. 08021970.
AAO Upholds Denial of L-1A Extension
(149 KB - 2/19/2008)
Non-precedent AAO decision upholds the denial of an extension for an L-1A VP/General Manager of a freight forwarding company, finding that although the petitioner established that the beneficiary would have supervisory authority over a professional, it had not shown that the she would be primarily engaged in managerial or executive tasks. AILA Doc. No. 08021968.
AILA Doc. No. 08021968.
Non-Precedent AAO Decision Finds Extreme Hardship in I-601 Waiver
(241 KB - 2/4/2008)
AAO sustains the appeal of a denial of a waiver application, finding that the emotional and financial hardship faced by the applicant’s legal permanent resident spouse, and her learning disabled U.S. citizen children, should the applicant, or the family, leave the country, would be of a degree that warrants the waiver. Courtesy of Cathy Higgins. AILA Doc. No. 08020463.
AILA Doc. No. 08020463.
Non-Precedent AAO Decision Finds Employer Unable to Pay Skilled Worker’s Wage
(366 KB - 1/30/2008)
AAO upholds the denial of an I-140 petition for a skilled worker after reviewing the petitioner’s income tax returns, and finding that the employer was unable to pay the proffered wage as of the priority date, or subsequently. AILA Doc. No. 08013067.
AILA Doc. No. 08013067.
AAO Requires Evidence that Special Immigrant Religious Worker’s Experience Was Full-time and Salaried
(91 KB - 1/30/2008)
Non-precedent AAO decision finds that an I-360 religious worker petition failed to show beneficiary received remuneration for her services, and thus, that she had the requisite two years of experience immediately preceding the filing date of the petition. AAO concludes an authorized letter is not always sufficient to comply with the requirement. AILA Doc. No. 08013066.
AILA Doc. No. 08013066.
AAO Finds Petition Lacks Evidence that "Human Resource Specialist" is a Specialty Occupation
(59 KB - 1/30/2008)
In a non-precedent decision, AAO upholds the denial of an H-1B petition for a human resource specialist, concluding that the petitioner did not establish that the proposed duties require knowledge that is usually associated with the attainment of bachelor’s or higher degree in a specialty occupation. AILA Doc. No. 08013065.
AILA Doc. No. 08013065.
AAO Finds Detailed Job Duties Are Required in Multinational Executive or Manager Petitions
(409 KB - 1/30/2008)
In a non-precedent decision, AAO upholds the denial of an I-140 petition for a multinational executive or manager of a restaurant, noting that a recitation of the beneficiary’s vague and broadly cast job responsibilities is insufficient to establish that she would be employed in a primarily managerial or executive capacity. AILA Doc. No. 08013060.
AILA Doc. No. 08013060.
Non-Precedent AAO Decision Upholds EB-1 Denial for Finance Professor
(368 KB - 1/28/2008)
AAO upholds the denial of an I-140 petition for classification as an outstanding professor or researcher in finance, finding that the record stops far short of elevating the beneficiary to an international reputation. AILA Doc. No. 08012869.
AILA Doc. No. 08012869.
Non-Precedent AAO Decision Upholds EB-1 Denial for Research Scientist of Extraordinary Ability
(497 KB - 1/25/2008)
AAO upholds the denial of an I-140 petition for classification as a research scientist of extraordinary ability, finding that the petitioner failed to establish sustained national or international acclaim. Evidence in many of the categories was rejected as not setting the individual apart from others in the field. AILA Doc. No. 08012560.
AILA Doc. No. 08012560.
AAO Finds Applicant Qualifies for Waiver of Grounds of Inadmissibility
(460 KB - 1/15/2008)
AAO finds that an inadmissible applicant should be granted waiver of grounds of inadmissibility under INA §§ 212(a)(9)(b)(v), 212(i). Extreme hardship and equities outweighed adverse factors. AILA Doc. No. 08011562.
AILA Doc. No. 08011562.
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