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The Critically Important Role of Proper Context for INA Benefits Purposes

by Joseph P. Whalen

I have written before on a variety of topics and issues relating to requests for benefits and entitlements under the Immigration and Nationality Act (INA). Some benefits are bestowed as a matter of "administrative grace" through a favorable exercise of discretion while other benefits are either absolute or qualified "entitlements". Some folks either don't know that there is a difference or can't tell which is which. Additionally, there are certain preliminary processes and/or threshold issues that may be required in advance of requesting an actual, practical, and tangible "benefit".

The prime example of something that folks get confused about is the visa classification and its associated petition. The mere "classification" in a statutorily prescribed category is an entitlement without a guaranteed tangible benefit. Obtaining official confirmation as to one's qualifications for a particular visa "classification" is only a preliminary step. The visa petition addresses underlying eligibility requirements such as substantiating a pre-existing relationship, or answering a threshold question. Is Juan legally married to Susan? Is Jean Luc really the legitimated child of Pierre? Is Jie really Quan's mother? Did Olusegun and Emeka have a bona fide parent-child relationship during the critical period in question? Is that adoption legal, both under the INA, and in the foreign country or state? Did the natural parent marry the subsequent non-parent spouse before the child reached 18 years of age (and while unmarried) in order to create a valid step-relationship? Is the marriage bona fide? Was the marriage "entered into in good faith"? Was the job offer viable or bogus? Did the employer have, upon filing and does the employer continue to have, the "ability to pay"? Was the labor certification application or visa petition "approvable when filed"? Was the beneficiary "eligible at time of filing"? Is the "time of adjudication" the critical time to show proof to the satisfaction of the deciding official? Has the beneficiary/applicant/self-petitioner lost eligibility since the prior preliminary or interim determination, via a dispositive material change: a child aged-out or married, petitioning spouse divorced the beneficiary, or beneficiary became inadmissible in some way? Has an earlier fraud or misrepresentation been detected that negates a prior favorable determination as to eligibility and/or qualifications? Most, if not all, of the above issues, questions, and concerns are well-known (at least I hope they are). I have seen a particular recurrent flaw in a variety of petitions and applications. Confusion of and about what the pertinent issues are, within the instant petition or application adjudication process, is often caused unintentionally due to approaching the preparation of a case and its evidence in support thereof, within the wrong context. In the simplest of terms, sometimes folks don't actually have any idea what they might really qualify for and simply file in the hopes that the agency will figure it out for them. That approach might actually work in only one type of case and that is the filing of USCIS Form N-600, Application for Certificate of Citizenship.

In citizenship claim cases, applicants may have a vague idea that they meet the requirements for derivative citizenship but rely on the adjudicator to sort through the evidence, much of which may be in the applicant's permanent A-file and thereby more accessible to the adjudicator than the applicant; and sort through the maze of changes in the law that have taken place over more than a century. A case in point, as to the availability of evidence, is the child born in a refugee camp who has no birth certificate and therefore must rely on the paperwork generated during refugee processing by United Nations, State Department, or INS/USCIS Officers. The necessary evidence most likely only exists inside his or her A-file.

That's enough ranting about evidence, now back to context. When one starts with a false premise or approaches case preparation within the wrong context, they will end up selecting and submitting evidence that is irrelevant to the actual critical issues and questions. Often, such a submission might superbly answer all of those totally irrelevant and unasked questions. If one is unclear as to the proper context then how can they anticipate the appropriate questions that the evidence must answer? The evidence might fully support and address each and every one of those incorrect or irrelevant issues and concerns but lead to denial because of the real eligibility requirements that went unaddressed and, questions that went unanswered.

Even worse is when futile Motions and Appeals are presented that refuse to acknowledge, address, and answer the identified issues relied upon by the adjudicator and the stated grounds for denial. Far too often, the inept applicant, petitioner, or practitioner will waste their efforts in arguing about what the core issues really are. In those rare instances when the agency has the underlying issues wrong, that is when we get judicial intervention in an area of law. However, such occurrences are far more rare rather than the inept applicant, petitioner, or practitioner seems to realize.

I have encountered individuals who prepare cases exceptionally well and others who fall short to varying degrees. That's just the reality of the world in which we live. You can't deny it and shouldn't ignore it. I urge you to combat it. "It" in the previous sentence refers to inadequacy through minor oversight, short sightedness, or perhaps gross incompetence.

Assuming arguendo that you have figured out whether you are:

(1) seeking to prove prima facie eligibility for a benefit that rests on a favorable exercise of discretion, or

(2) seeking to prove by the appropriate evidentiary standard, an absolute entitlement to a statutory right, privilege or status (such as citizenship or issuance of a document), or

(3) a qualified entitlement from which one is not statutorily barred:

How do you assemble the evidence and present the case? Well, you must present the case within the proper context.

Context is most crucial at the beginning and again at the end. In the beginning, one must set the stage and prove threshold issues. At the end, one must successfully leap the final hurdle or cross the finish-line. Are you trying to prove a familial relationship, the proper classification for the employment position, the pre-existing employment relationship (L non-immigrant or E1-3/E1-C immigrant), the beneficiary's qualifications for said position, or the employer's ability to pay? Indicate up front what you are trying to prove for this particular petition or application, and neatly tie it all together at the end with a succinct well-supported conclusion.

In between, you need to guide the adjudicator through your evidence pointing out and playing-up all of the highlights while acknowledging yet minimizing or down-playing (i.e., explain away) any less than favorable information. Yes, there was one petty theft some years ago but it meets both of the exceptions at INA 212(a) (2)(A)(ii)(I) and (II)! [The applicant was under 18, served 30 days, maximum penalty was only 90 days, and it was 5 years ago.] Here are the documents: an Official Final Court Disposition, a copy of the report issued upon release showing good behavior, a letter from the Probation Officer stating full compliance with counseling, no probation violations, and all fees and fines paid. Lastly, here is a copy of the actual statute of conviction for reference with citation to the applicable INA section and controlling precedent(s).

EXAMPLE: Context is even more important to certain classifications. The EB-2 National Interest Waiver (NIW) has multiple contexts to consider. First, there is the underlying EB-2 variety to consider. Is the beneficiary/self-petitioner a "professional" or an "alien of exceptional ability"? In which of the plethora of professions recognized by the Department of Labor does this person hold qualifications? In which of the three available contexts does the "exceptional ability" lie? There are, as a mere starting point, a minimum of four broad contexts, which can easily grow exponentially.

THRESHOLD QUESTIONS: Does this person qualify because of their exceptional ability in the sciences, arts, or business? Here you have three broad contexts to choose from in which to build your case and arguments. As for the professional, there are far too many possibilities to use the underlying classification of the professions as an example of a context here. [My essays are often too long even when I try to be succinct and I am not attempting that here.] We now have three remaining broad categories and each of those offers a wide variety of sub-categories or sub-disciplines. I choose science as the primary example for this discussion.

SCIENCE: Are you dealing with a physical or natural scientist, or a social scientist? Is (s)he a practical or theoretical scientist? Are you dealing with a physicist, a chemist, a biologist? Perhaps you have a nanoscientist who has developed a breakthrough in vision correcting eye implants. Is (s)he instead, an oncologist, an anthropologist, mathematician, sociologist, statistician, economist, paleontologist, or just maybe a mechanical engineer that designs and modifies fission reactor components? There is a wide range of possibilities presented and that's not even the tip of this iceberg.

SET THE STAGE: You probably need to include some background material in order to allow the adjudicator to see the beneficiary's "exceptional ability" in the "big picture" within his or her particular area of specialization. The beneficiary may be a big fish in a small, overlooked, misunderstood, extremely new (i.e., cutting edge), or obscure pond. However since the alien is claiming that that pond is an important one, help the adjudicator see that fact via submission of pertinent corroborating evidence. Educate your audience on the proper context in which to meaningfully consider and properly weigh the evidence presented.

INTERIM STEP: Every EB-2 alien (exceptional or professional) must present evidence that (s)he will "substantially benefit prospectively the national interest" in a broad and general way. This universal requirement has been synthesized to mean evidence of a substantial prospective benefit. This basic requirement need not be feared as an overwhelming obstacle or as too great to surmount. As an example, almost any medical research is likely to be beneficial and since the alien is coming to continue and build upon a prior body of work there is little objection to granting the benefit-of-the-doubt provided that one can demonstrate that the alien's past record justifies projections of future benefit. This involves a finding-of-fact by the adjudicator similar to an IJ finding a likelihood of future harm if one were removed to their home country in order to justify granting relief from removal. However, since the USCIS Service Center Adjudicator is making a determination on a paper record, AAO can make a new finding-of-fact in its de novo review based on the same or a supplemented record on appeal or certification. The BIA does not have the same latitude over an IJ's findings-of-fact due to the dissimilar natures of the two underlying proceedings, which may involve oral testimony and a chance for the IJ to observe demeanor through personal interaction.

NEXT STEP: Now you must determine the proper context for the NIW claim. The NIW must go beyond the prima facie showing made about the past record, which was already demonstrated in order to obtain the underlying EB-2 classification. The statute provides a basis as to the available contexts for use in building the case and arguments. In order to qualify for the EB-2 visa, the alien must generally convince USCIS that (s)he 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. However when the adjudicator deems it to be in the national interest, he or she may, on behalf of USCIS, waive the requirement that an alien's services actually be sought by an employer in the United States. Thus, the particular requirements that are being waived in the national interest are:

(1) an actual job offer and,

(2) the hassle of the permanent labor certification process.

NIW CONTEXTS: After building the case for classification within the particular underlying context, we now shift to a new context for this additional requested benefit of a "waiver".

Here are the statutorily available choices within which to prove that the alien's admission as an immigrant would be In The National Interest:

(1) National Economy,

(2) National Cultural Interests,

(3) National Educational Interests, or

(4) National Welfare. [For this final context, I look to the U.S. Constitution's Preamble which states that "in order to form a more perfect Union", one of the things that "We the People" will strive to do is: "promote the general Welfare".]

AAO issued a single Precedent Decision, which serves as the principle guide for the adjudication of the request for the NIW.

Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998) (NYSDOT), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.[1]

Since I have already written extensively and previously published on the topic of the National Interest Waiver, as well as entitlements, administrative grace, weighing of evidence, sound judgment, and fairness. I will not repeat all of that here. Instead, I leave you with some links to other works.

A Recent Successful Request for an L1-A Intra-company Transferee as a Manager or Executive,0207-Whalen.shtm

Regarding National Interest Waivers,0227-whalen.shtm

A Recent Successful Request for an Outstanding Professor or Researcher,0110-Whalen.shtm

It's Hard to Get Someone With Tunnel-Vision to See the Big Picture,0319-whalen.shtm

Entitlement vs. Discretionary Relief or "Administrative Grace",0202-Whalen.shtm

An Open Letter to USCIS Offering A Suggestion For A Generally Applicable USCIS Policy of Fairness,1019-whalen.shtm

"Eligibility at the time of filing" Misapplication of Very Specific I&N Decision Holdings and Principles to Too Many Circumstances,0301-whalen.shtm

Footnotes 1 See: AAO Decision dated August 12, 2010

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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