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"Eligibility at the time of filing" Misapplication of Very Specific I&N Decision Holdings and Principles to Too Many Circumstances

by Joseph P. Whalen

Introduction: There appears to be some confusion in the realm of adjudication for applications and petitions for benefits under the Immigration and Nationality Act (INA). Certain very proper concepts are being applied improperly and invading certain benefit adjudications where they do not belong.
Matter of Izummi, 22 I&N Dec. 169 (BIA[1] 1998) holds, in pertinent part,

(3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.
That same decision goes on to further explain the underlying requirement, thus:

"A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements." [emphasis added]

Matter of Katigbak, 14 I&N Dec. 45 (Reg, Comm., 1971) is often cited with regard to the general principle as restated in Izummi that one "must establish eligibility at the time of filing[2] " and as expanded upon in the 3rd prong of the 13 prong holding in Izummi, prohibiting the making of material changes subsequent to filing to remedy deficiencies. This is not to be confused with a mere matter of supplying further evidence in response to a request for evidence. The prohibition is against creating new circumstances for which no evidence previously existed in the absence of a material change made subsequent to filing. It should be remembered that both of these Precedent Decisions involve visa petitions that are tied inextricably to the filing date as the priority date for purposes of obtaining a place in a very long line for an immigrant visa. Such immigrant visa being among the visa preference categories for which there are numerical limitations and country of origin quotas.
In short there are two guiding principles involved:
  1. That one must establish eligibility "at the time of filing", per Katigbak and
  2. That one "may not make material changes to his petition in an effort to make a deficient petition conform to [USCIS] requirements." Per Izummi.
These principles have invaded the psyche of many USCIS Adjudicators and, obviously, the AAO. It is being misunderstood and misapplied to inapplicable benefit applications. That decision in Katigbak relates to the filing of and qualifications for an employment-based immigrant visa petition because the filing date sets a priority date for visa issuance purposes as stated in Title II of the INA (see generally, INA 203). This general principle has clear applicability to certain other petitions and applications but does not apply to everything.
The holding in Katigbak is actually:

To be eligible for preference classification under 203(a) (3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified member of the professions at the time of the filing of the visa petition. Education or experience acquired subsequent to the filing date of such visa petition may not be considered in support thereof since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought. [emphases added]

Preference visas are allocated on a first-in, first-out system of quotas by country based on specific pre-existing relationships of a family-based category or pre-existing relationships and/or qualifications of an employment-based category. For I-140, I-130, I-526, I-730 and most I-360[3] visa petitions, this concept generally makes sense.
Izummi deals with very complex issues ranging from an individual immigrant investor's I-526 petition to requirements related to designation as a Regional Center (something now applied for via an application form I-924 but previously merely by a "Proposal".) The underlying Regional Center designation, associated economic analysis, business concepts and organization have further implications on the individual investor's I-526[4] visa classification petition and the associated follow-up I-829 petition to remove conditions. The whole of EB-5 is intertwined in a highly complex manner that dictates that the separate petitions and applications overlap one another. That unique and highly complex set of circumstances is not a proper Precedent outside its limited sphere any more than Katigbak.
Although, we can all recognize that petitions may be "upgraded" to a more favorable place in the visa queue due to subsequent changes. An I-130 petitioner may subsequently naturalize, for example. This is not completely fair across the board as some changed circumstances result in a longer wait. This is most evident in the "upgrade" to family first preference from the family second preference "B" (FB-2B) for those from the Philippines or the "child" who ages out of a spousal petition (FB-2A) filed by a Mexican LPR petitioner and converts to FB-2B. Congress has passed some remedial legislation to try to combat this and other unfair consequences, i.e. the Child Status Protection Act (CSPA) and the Substitute Sponsor Act and the newer INA 204(l) provision which allows beneficiaries to proceed with immigration in the case of death of the "qualifying relative" which can be a sponsor or a principal or any derivative beneficiary of a family or employment based petition. The general adjudication principle that one "must establish eligibility at the time of filing" has its place, and its limitations as well.

Clear Misapplication of Katigbak and Izummi:

Please read this:

The above link is a prime example of misinformation and misapplication of these principles that USCIS (in this case AAO) has put forth over the years. Specifically of concern is the following from the above N-600 Decision:

"Although the district director based his denial on the applicant's failure to establish that he held lawful permanent resident (LPR) status, the record does not indicate that the district director requested evidence from the applicant regarding his status [5]. The regulation at 8 C.F.R. 103.2(b)(8) requires CIS to issue a request for evidence where a record offers no evidence of ineligibility and initial evidence or eligibility information is missing. Accordingly, the application will be remanded to allow the applicant the opportunity to provide evidence that he adjusted status prior to filing the Form N-600. If he is able to establish that he held lawful permanent resident status at the time of filing[6], the applicant is eligible for a certificate of citizenship under section 320 of the Act.

If the applicant was not a lawful permanent resident at the time he submitted the Form N-600, the application must be denied[7]. However, if the applicant subsequently applied for adjustment and now holds LPR status, he may submit a new application[8] for a certificate of citizenship as he has not yet reached 18 years of age. For the reasons previously discussed, the matter will be remanded to the director so that he may obtain evidence related to the applicant's status at the time of filing.

However, the statutory section under which an N-600 is filed, specifically, INA 341(a) does not state that one must be fully eligible "at time of filing" but rather "upon proof to the satisfaction of the [Secretary of Homeland Security] that the applicant is a citizen.....and upon taking and subscribing before [a USCIS Officer] within the United States to the oath of allegiance required by this Act of an applicant for naturalization, such individual shall be furnished.........with a certificate of citizenship." See INA 341(a). [emphases added]
Both, Katigbak, specifically, and Izummi, in part, stress the principle that one must be "eligible at time of filing." Izummi prohibits material changes after filing in order to become eligible for the benefit sought. This is sound when dealing with certain petitions and with certain applications but it is definitely not an overall mandate for each and every benefit under the Immigration and Nationality Act. The above N-600 decision, based on INA 320, is but one example where time of adjudication is the appropriate framework. This is true for the N-400 and N-600K as well.
The N-600, like the N-400 and N600K, is one of the applications covered under Title III, either Chapter 1 or Chapter 2, of the INA. As such, one must prove eligibility at time of final adjudication and admission to citizenship. Yes, certain prerequisites apply to the filing of an N-400, however, eligibility can be effected all the way through time of admission to citizenship upon taking the Oath. On the other hand the N-600 does not have the exact same process as an N-400 although it shares certain characteristics.
If an N-400 is filed and the applicant is a "no show" for an interview, the N-400 can be "Administratively Closed" (an N-600 may not)[9]. Within one year, the Admin Closed N-400 can be reopened merely by a simple written request with no form or fee or specific substantive evidentiary requirement or even an explanation for the "no show". At the time of reopening an admin closed N-400, the new eligibility determination date, even for prerequisites and exceptions under INA 312, is the date of the reopening request.[10]
If an N-400 is denied, it may not be "appealed" but instead one may request a "second hearing" under INA 336(a). At the time of second hearing a full de novo hearing may be conducted as of the date of the hearing. If an N-400 remains denied at that point it is then subject to a judicial review under INA 310(c) and yet again another de novo review and can be appealed all the way to the Supreme Court all de novo.
If an N-600 is denied, 8 CFR 341.6 states that an appeal may be filed but if one is not filed within time limits, then a second N-600 may not be filed, instead any such post-appeal-period-previously-denied-N-600-applicant is to file a Motion.[11] Once a Motion is filed and a new decision is issued, if it is a denial, it is vested with new appeal rights. If an appeal is dismissed by AAO, the claim may be further pursued in the Federal Court system. [12]
8 CFR 322.5 What happens if the application is approved or denied by the Service?

(a) Approval of application. If the application for certificate of citizenship is approved, after the applicant takes the oath of allegiance prescribed in 8 CFR part 337, unless the oath is waived, the Service will issue a certificate of citizenship. The child is a citizen as of the date of approval and administration of the oath of allegiance.

Obviously, the N-600K applicant (like the N-400 applicant) is not a citizen at time of filing and not until the Oath is administered either to the child or sworn by the parent (guardian) on behalf of the child.

The pertinent adjudication principles stated in the holdings in Katigbak and Izummi do have a proper place, let's keep them there. It should be noted that USCIS is making strides in the right direction. For example, the recent memos on: appeal rights language[13] in decisions, and specific options for filing motions,[14] is a step in the right direction. Time will tell how things play out.

1 Although the decision as noted on the EOIR website lists this as a BIA precedent and the actual I&N Decision credits it to the, then INS, Regional Commissioner, it was actually rendered by the AAU, of what was INS (now AAO of USCIS).
2On April 17, 2007, 72 FR at 19105 added 8 CFR 103.2 Applications, petitions, and other documents. (b)(1) Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form's instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition. Click this.
3VAWA based petitions which may involve the underlying I-130, a subsequent I-360 or an I-751 may be renewed after a divorce is concluded, so a changed circumstance is not an absolute determinative factor of a final outcome on the petition(s).
4The USCIS EB-5 Memo of December 11, 2009, allows a new I-526 to be filed and re-adjustment due to material changes, see: Click This
5N-600 regulations promulgated in 2001, in the wake of CCA 2000, and the form instructions clearly inform both the adjudicator and applicants that they may rely on USCIS records as evidence.
6A misapplication of Katigbak. Certificates of Citizenship are issued pursuant to INA 341(a) which does not state or even imply that one must be eligible at time of filing but rather at time of adjudication.
7See footnote 5.
88 CFR 341.6 is controlling and prohibits a new application, a denied applicant is restricted to filing a Motion and it is not time or number barred until a Final Agency Decision is issued and directs the applicant to file a Petition for Declaratory Judgement of United States Nationality (Citizenship) in a U.S. District Court under INA 360(a) [8 U.S.C. ?1503(a)] and pursuant to 28 U.S.C. 2201. The existence of concurrent Removal Proceedings would preclude U.S. District Court judicial review under this section and restrict review to a Petition for Review in a U.S. Circuit Court of Appeals of any Removal Order following a BIA Dismissal of a Removal Order under 8 USC 1252(b) [INA 242(b)].
9See preamble to regulatory change to 8 CFR 341 at 50 FR 39649, Sept. 30, 1985.

108 CFR 335.6 Failure to appear for examination.

(a) An applicant for naturalization shall be deemed to have abandoned his or her application if he or she fails to appear for the examination pursuant to 335.3 and fails to notify the Service of the reason for non-appearance within 30 days of the scheduled examination. Such notification shall be in writing and contain a request for rescheduling of the examination. In the absence of a timely notification, the Service may administratively close the application without making a decision on the merits.

(b) An applicant may reopen an administratively closed application by submitting a written request to the Service within one (1) year from the date the application was closed. Such reopening shall be without additional fee. The date of the request for reopening shall be the date of filing of the application for purposes of determining eligibility for naturalization.

(c) If the applicant does not request reopening of an administratively closed application within one year from the date the application was closed, the Service will consider that application to have been abandoned, and shall dismiss the application without further notice to the applicant.

118 CFR 341.6 Denial of application.

If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a). After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5. The motion shall be accompanied by the rejected application and the fee specified in 8 CFR 103.7 reduced by the amount of the fee paid with the rejected application. A decision shall be issued with notification of appeal rights in all Certificate of Citizenship cases, including any case denied due to the applicant's failure to prosecute the application.
12See footnote 7.
13Guidance on Uniform Denial Language Pertaining to Appeals to the Board of Immigration Appeals Revisions to Adjudicator's Field Manual (AFM) Chapter 10.7(b) (AFM Update AD10-25)
(51KB PDF) 08/26/2010

14Notice to Applicants and Petitioners Concerning Ability to File Motions to Reopen or Reconsider; Revisions to the Adjudicator's Field Manual (AFM) Chapter 10.7; AFM Update AD11-09 (327KB PDF)

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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