Blanket Petition or Programmatic Approach versus Individualized Case-By-Case Analysis
The various benefits available under the Immigration and Nationality Act (INA) are defined differently in terms of qualifications and eligibility. There is diversity as to the processes employed in making determinations for, and allocation of, such benefits as well as the actual substance of the various benefits bestowed. Some INA benefit categories are of a permanent or semi-permanent nature, while others are temporary in nature and of short to long-term duration, or conditional in nature. Among the myriad of benefit possibilities in the INA some lend themselves to a Programmatic Treatment while others are decidedly specific to the individual petitioner, sponsor, applicant, or beneficiary. Lastly, some are a mixed bag, a real potpourri, or in other words, just not that simple. These last INA benefits are quite appropriately treated in various group contexts, or progressively in stages, or some inter-related manner.
II. Highly Individualized Benefit Categories
The highly individualized cases must be examined in a heightened manner based on the careful and sometimes painstaking dissection and distillation of the evidence submitted, in the context of the specific evidentiary criterion one seeks to prove and establish. Most familiar of these individualized benefits are naturalization, recognition of citizenship, family-based immigrant petitions, or adjustment of status to lawful permanent residence.
As a further example of this, consider the EB-2 non-physician or "standard" National Interest Waiver (NIW). "It is the position of [USCIS] to grant national interest waivers on a case by case basis ... [as demonstrated by the evidence in the individual record] ..., rather than to establish blanket waivers for entire fields of specialization." See Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). Additionally, aliens of extraordinary ability, or of exceptional ability, or with specialized knowledge, or in specialty occupations; are all regulated specifically in accordance with the statutorily defined classifications, or the actual position offered by the employer as per an approved labor certification, and each is a person-centric adjudication as to the individual beneficiary.
III. Non-Complex Programmatic Benefit Categories
A. Emergencies and Humanitarian Programs
Some very simple examples of programmatic treatment of certain classes of aliens are those being treated as a group with shared qualities and/or qualifications as the result of a natural disaster or civil unrest in the country of origin or geographic region, i.e., extensions of TPS: Temporary Protected Status under INA § 244, or Haitian F-1 Students' work authorization, or Liberians with Deferred Enforced Departure (DED) work authorization. While these examples are extreme and emergent programs, there are also regularly available benefit classes whether, complex and limited, or run-of-the-mill classes that are treated programmatically.
B. Routine Programmatic Treatment
Consider the Blanket Petitions for the "L" non-immigrant intra-company transferees, H-2A agricultural workers, or H-2B non-agricultural seasonal workers, wherein, it is not even required to name any beneficiaries up front. Those INA benefits and the employers' required processes are primarily designed to facilitate the adequate supply and flow of specific types of workers for specific types of jobs but are not primarily concerned with the individual beneficiary's qualifications in the blanket process. While the blanket process may be used to narrow the type of worker sought, that type is somewhat broad and generalized. Initially, it is the employer who must make a showing about itself, the working conditions, ability to pay and otherwise compensate the desired workforce, and its actual and/or anticipated labor needs. The actual non-immigrant workers and their individual qualifications are of peripheral concern to DOL and/or USCIS at this initial stage. The qualifications of the individual workers will be of more concern later when they apply for visa with DOS, or to CBP at time of entry, or with USCIS when the alien seeks to change or extend status.
IV. Complex Hybrid Programmatic Benefit Categories
A. Q-1 Cultural Exchange Programs
Certain INA benefits combine programmatic aspects in the process and are equally concerned about the individual applicant's or beneficiary's very specific qualifications. The Cultural Exchange Visitor Q-1 non-immigrant visa is a prime example of a hybrid category. The program sponsor must qualify its program as one that entails a true cultural exchange within the meaning of the statute and regulations. However, that is only one component of the adjudication decision. The individual beneficiary must also qualify to participate in the qualified Program.
The sponsor's Q-1 Program itself may be completely rigid, static, and unchanging; or it may be dynamic and fluid as to that particular petitioner's Cultural Exchange Program. The Program may have a steady framework that operates within set parameters which allows for a wide range of individual beneficiaries to carve out a particular niche. The individual beneficiary's evidence will have to show that (s)he fits into and qualifies for the particular Program as defined by the sponsor and as presented to USCIS for designation as a qualified Cultural Exchange Program.
1. The following is an excerpt from one recent non-precedent AAO Decision found at:
2. Sometimes changes happen through new legislation, new regulations, new Precedents, or sometimes past mistakes get caught and corrected. This next example shows a change in the Program from what had been presented in previous proceedings for prior beneficiaries who were approved. Dare I call this an example of an impermissible "material change"?
This next Q-1 excerpt is found at: Apr222010_01D10101.pdf
3. The following is a case wherein a prior mistake is acknowledged but that realization cannot serve as a reason to continue approving beneficiaries for an unqualified Program. This excerpt is from a case decision found at: Aug192010_02D10101.pdf
B. EB-5 Immigrant Investor Pilot Program
One of the more complex hybrid categories is that of the EB-5 "employment creation" immigrant investor or entrepreneur visa classification and the associated Regional Center Designation. Collectively, this is the Immigrant Investor Pilot Program. See 8 USC § 1153 Note and INA § 203(b)(5) [8 USC § 1153(b)(5)]. This Program also includes the petition to lift conditions which is a follow up procedure to ensure compliance with the plans (whatever they may have been) put forth earlier in the process. This particular INA benefit is multifaceted, complex and involves multiple participants.
The vast majority of EB-5 investors participate through a USCIS Designated Regional Center primarily for the purpose of being able to count "indirect jobs" but, also for the purported ease and passivity involved. The overarching coordinated responsibilities of: project planning, EB-5 and other legal compliance considerations, and the coordination of multiple investors which includes the EB-5 immigrants (and dependents), non-EB-5 foreign investors, and domestic investors; should be shouldered by the Regional Center. It is not a simple process to become a Designated Regional Center. The Regional Center application must be supported by solid evidence including at a minimum: a comprehensive, detailed, credible business plan that is supported by a sound and verifiable economic analysis containing viable predictions as to regional or national economic benefits and job creation projections.
The individual immigrant investors will simply take the basic evidence provided by the Regional Center that was used to support its USCIS Designation plus standardized transaction documentation and add individualized financial documentation. Similarly to the Q-1 Cultural Exchange Program mentioned previously this Immigrant Investor Program must stand up to scrutiny at this stage as specifically applied to the individual alien beneficiary's participation in it. Just like the Cultural Exchange Program, when the current record introduces new inconsistent claims regarding a Regional Center's Investment Program, previous approvals of other beneficiaries' petitions will not serve as a basis to approve a currently unqualified EB-5 investor. In addition, such revelations about impermissible "material changes" to that particular Regional Center's Investment Program as discovered in an individual investor's case may have ramifications on other individual cases and the Regional Center Designation itself.
In addition to the initial EB-5 visa classification petition, there is also the follow-up petition to lift conditions from the alien's status approximately two years down the road. That "lifting of conditions" process involves a "back-end burden of proof" to substantiate the desired projected results. At the earlier stage, a plan was presented, at the back-end, the alien with the help of the Regional Center must demonstrate with solid evidence that the full amount of capital was invested and the jobs have been created. In other words, USCIS is hoping to, and is only expecting to, do a straight forward fact-check to see that the comprehensive plan has come to fruition or is on the cusp of achieving the goals within a reasonable period of time. As sometimes happens in life, plans do not always work out as we would like but sometimes they do.
1. From the latest AAO non-precedent Decision posted on the agency website (and that is for ALL posted categories), the following is found at: Apr142011_01B7203.pdf
The above passage is not about a flawed premise in a business plan or the economic analysis that was used to support it. Neither the Director or AAO went behind the previously approved methodology for calculating the indirect jobs but rather found fault with its later application. In this case, there was no material change but rather, a failure to achieve predicted goals, i.e., employment of "qualified U.S. workers" as the base figure of direct employees to which to apply the previously approved multiplier.
2. The preceding case involved a petition to remove conditions. It failed to show meet the "back-end burden of proof" as to job creation. The next case involves the petition of an investor seeking to begin an association with a Regional Center. The Regional Center made material changes and failed to disclose those changes, or seek a timely amendment before allowing this investor to file an individual petition. Not having been in the room with the investor, his/her counsel, and any Regional Center representative when it was decided to file that particular investor petition, it can only be speculation as to who decided that the time was right to file it. Whoever it was failed to consider all the fine details.
The following excerpt is found at: Sep212010_01B7203.pdf
It is clear that the separate and independent actions of the various participants in the EB-5 Immigrant Investor Program may have significant effects on the others involved in the projects. Those independent actions must therefore be closely coordinated or else they may have serious negative ramifications for the other participants. It is standard practice for Regional Centers to charge a substantial fee to the alien investors (often called a subscription fee) of anywhere from $20,000 to $80,000+ above and beyond the minimum investment amount required by law. Purportedly those fees will be used, at least in part, to fund business plans and economic analyses and other tasks specific to that alien investor's participation in the Regional Center sponsored project. Investor specific expenditures may include vetting of funds and pre-screening against grounds of inadmissibility for the principal and dependents but usually does not include USCIS filing fees and/or immigration attorney fees. Timely amendments necessitated by significant material changes in investment strategies as well as the project-specific business plans, economic analysis, and/or standardized shared transaction documentation would seem to be viable expenditures for those fees. The filing fee for the amendment would be $6,230 divided amongst ALL the affected individual investors in the project is a small percentage of the base fee charged. In that USCIS is reworking the EB-5 Program at this time, it may come up with alternative methods such as the exemplar I-526 or even an I-290B Motion to facilitate smaller scale and quicker material changes.
The INA contains a wide array of possible benefits. Such benefits vary greatly. Some of the contexts are highly specific to the individual while others are broader and applicable to large groups. Still others are combinations that entail broader group or collective aspects but also have requirements that are specifically applicable to the individuals within such collectives. All-in-all, there are variable contexts at play which may be difficult to differentiate between at times. As has been said before and still holds true: It's just not that simple.
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.