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Blanket Petition or Programmatic Approach versus Individualized Case-By-Case Analysis

by Joseph Whalen

I. Introduction

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:
Aug112010_01D10101.pdf

"III. Prior Approvals and Conclusion

The AAO acknowledges that USCIS previously approved many Q-1 nonimmigrant petitions filed by the petitioner on behalf of various beneficiaries. Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate burden of proof. See 8 C.F.R. 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 103.2(b)(16)(ii). Despite any number of previously approved petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 29 1 of the Act.

As discussed above, given the petitioner's practice of hosting three different sets of artists in each calendar year, any given session of the program would reasonably be unique based on the characteristics of the artists chosen for residency. For this reason, the AAO finds it reasonable to evaluate the petitioner's program on a case-by-case basis. A session that includes an alien artist whose work is demonstrably tied to the culture of his or her home country would likely meet the cultural and work component requirement set forth in the regulations. The AAO's finding that the petitioner failed to establish that the instant beneficiary would be sharing German culture as an integral and essential component of her employment should not be construed as a finding that any or all prior Q- 1 approvals were granted in error. Further it should be noted that we do not question the intrinsic artistic value of the beneficiary's work, or the benefit to the community that undoubtedly arises from the petitioner's artist-in-residence program, educational activities and public outreach programs. [Emphases added.]

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met." At pp. 14-15

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

"IV. Conclusion

The AAO acknowledges the petitioner's claim that the USCIS has approved many prior petitions filed by the petitioner, including one prior petition that was approved by the service center and certified to the AAO. It must be emphasized that that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 103.2(b)(16)(ii).

If the previous petitions were approved based on the same unsupported assertions that are contained in the current record with respect to the wages offered to the beneficiaries, the approvals would constitute material and gross error on the part of USCIS. B regarding which party is responsible for paying the beneficiaries' room and board, and the AAO has taken notice that the petitioner requires the beneficiaries to pay fees for their participation in the petitioner's program. The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).

A review of the AAO's prior decision shows that it was limited to a discussion of whether the petitioner's international cultural exchange program met the requirements for program approval set forth at 8 C.F.R. 2 14.2(q)(3)(iii), as it perceived this issue to be the primary reason for the director's decision to certify the decision to the AAO. Unlike the previous petition reviewed by the AAO, the current record clearly raised significant concerns regarding the payment scheme used by the petitioner to compensate the beneficiaries, as the director denied the petition, in part, based on the petitioner's failure to satisfy 8 C.F.R. 2 14.2(q)(4)(i)(D). Despite any number of previously approved petitions, USCIS does not have authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act.

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met." At pp. 13-14

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

"The AAO acknowledges that USCIS previously approved two Q-1 nonimmigrant petitions filed by the petitioner. The prior approvals do not preclude USCIS from denying an extension of the original visa petition based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The mere fact that USCIS, by mistake or oversight, approved a visa petition on one occasion does not create an automatic entitlement to the approval of a subsequent petition for renewal of that visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 597 (Comm. 1988). For example, if USCIS determines that there was material error, changed circumstances, or new material information that adversely impacts eligibility, USCIS may question the prior approval and decline to give the decision any deference. [Emphases added.]

Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate burden of proof. See 8 C.F.R. 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 103.2(b)(16)(ii).

Despite any number of previously approved petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. If the petitioner routinely submits the same types of evidence in support of its Q petitions, then it is likely that the prior petitions were also approved without sufficient evidence of eligibility in the record. Such approvals would constitute material and gross error on the part of the director. Neither the director nor the AAO is required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988)." At pp.11-12

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 petitioner's evidence regarding its direct qualifying employees is not relevant, probative or credible. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. The submitted evidence in this matter is so flawed, that there is no established number of direct jobs that can be used for the multiplier.

Even if we were to consider the claims in a light most favorable to the petitioner, and apply the 2.66 multiplier to the non-qualifying direct jobs, the resulting number would not satisfy the statutory minimum. The petitioner has not submitted consistent, probative, and credible evidence that Mr. and Mrs. [REDACTED] worked as direct employees; therefore, the petitioner has only established 14 direct jobs. Applying the multiplier to 14 direct jobs results in 37.24 jobs. As the multiplier represents total job creation (direct and indirect), we must subtract the 13 direct jobs filled by non-qualifying employees for a total of 24.24 jobs. As noted by the director, two alien investors already removed conditions based on these indirect jobs; therefore, we must subtract the 20 jobs that have been allocated to them. Thus, we could not allocate more than four of the indirect jobs to the petitioner. See 8 C.F.R. 204.6(g)(2).

With respect to the other two alien investors who have removed conditions, the AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). [Emphasis added.]

Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if the service center director had approved Form 1-829 petitions for two other investors, the AAO would not be bound to follow the contradictory decision of a service center. See Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).

Finally, there are serious legal concerns about allowing an enterprise to calculate indirect job creation based on the actual employment of unauthorized aliens. In the certified decision, the director stated that "allowing this practice may be contrary to the spirit of the law as the statute is designed to encourage job creation for qualifying employees." The AAO concurs that allowing the application of a multiplier to non-qualifying jobs would likely result in eligibility for petitioning aliens who are unable to document the creation of any jobs for qualifying employees. This outcome is inconsistent with Congressional intent to create jobs for qualifying employees. See 136 Cong. Rec. S17106-01, 17107, 1990 WL 165401." At pp. 16-17

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

"The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(5). The petitioner claims eligibility based on an investment in a regional center pursuant to section 610 of the Judiciary Appropriations Act, 1993, Pub. L. 102-395 (1993) as amended by section 402 of the Visa Waiver Permanent Program Act, 2000, Pub. L. 106-396 (2000). The regional center, the Capital Area Regional Center Job Fund (CARc), was designated as a regional center by U.S. Citizenship and Immigration Services (USCIS) on November 25, 2005. On May 20, 2008, USCIS issued an e-mail acknowledging that CARc had obtained a new escrow agent and had a new address. Subsequently, aliens began filing Form I-526 petitions based on an investment in CARc. These petitions were supported by substantially amended agreements from those submitted with the original regional center proposal in 2005. The Form 1-526s petitions did not disclose that these agreements had been amended from the 2005 agreements. In response to concerns raised by the Director, Texas Service Center (TSC), confirmed by the AAO on certification, CARc sought an amendment of the proposal in March 2009, which was approved. The CSC director approved a June 2009 amendment request on December 23, 2009.

The director determined that the petitioner had filed to demonstrate that the original business plan and projections continued to be viable. The director also determined that the petitioner had not established the lawful source of funds. The director certified the notice of denial to the AAO pursuant to 8 C.F.R. 103.4. In compliance with the regulation at 8 C.F.R. 103.4(a)(2), the director provided notice to the petitioner, through counsel, and advised that a brief could be submitted directly to the AAO within 30 days.

In response, counsel, through the submission of a brief by [REDACTED] asserts that the regional center is seeking a second approved amendment to the regional center proposal that will include the regional center's current business plan. The director approved the amendment request on December 23, 2009. Significantly, the director advised: "This project approval in conjunction with the most recent approved general proposal amendment will allow current investors in this project to proceed with refiling their respective Forms I-526, Immigration Petitions by Alien Entrepreneurs with the appropriate fee."..." At p. 2

".... A May 20, 2008 e-mail message from FTIRCP to CARc's counsel confirms CARc's use of a new escrow agent and the company's address change. This detailed email message makes no mention of amendments to the operating agreement other than those changing the escrow agent. These documents do not support [REDACTED's] claim that CARc repeatedly sought approval of the amended agreements and relied on some type of informal communication that the agreements were acceptable." At p. 8

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.

V. Conclusion

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.


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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