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Page 1 of 12 Nothing Prevents Considering Other Evidence on Motion or Appeal Even If It Was Never Submitted with the Original Petition --Sometimes By Joseph P. Whalen (Wednesday, December 14, 2016) INTRODUCTION: Ogundipe v. Mukasey; Katigbak; and Motions To be clear from the start, this article is aimed at USCIS’ AAO Appeals Officers, the Immigration and Naturalization Adjudications Officers at all USCIS Offices, and I suppose ICE Trial Attorneys, as well as all of their respective customers and/or respondents (and their counsel). 1 The rather lengthy, tongue-twisting title of this article is largely drawn from the second sentence in the quote from Ogundipe, infra. The principle embodied within it is useful beyond the context of “grandfathering” for legalization. If nothing in the applicable statutes or regulations [] prevents an IJ in removal proceedings from considering other evidence that a petition was approvable when filed, even if that evidence was never submitted in conjunction with the original petition”, then the same principle should also apply to administrative appeals and motions, sometimes. It is especially appropriate to accept new evidence when trying to prove eligibility at time of filing the original petition by proving facts that existed at that time. An IJ is not technically entertaining an appeal from, or motion on, the USCIS denial of a visa petition but instead, the IJ would be ruling on the “renewal” of a denied adjustment application, USCIS Form I-485. The validity of his original visa petition was critical to his adjustment application. In Ogundipe, the applicant sought to be grandfatheredfor adjustment of status under the special ameliorative provisions 2 of INA § 245(i) [8 U.S.C. § 1255(i)] based upon a new visa petition based further upon a prior visa petition which, incidentally but irrelevantly, was not approved. The key to one’s “present” eligibility for adjustment based on a newly filed visa petition is whether or not the prior visa petition was approvable when filed. It did not have to be approvable as filed, nor did it actually have to have been approved in order to qualify for grandfathering purposes. Grandfathering required for INA § 245(i) hinges on having met a filing deadline referred 1 Please bear with me, I sometimes meander (a lot) but I usually make it from point A to point B, eventually. Come along on this journey, walk with me; talk with me, as I often say when dealing with folks face-to-face. 2 I hate to remind opponents of immigration about “legalization” but Ogundipe is too important to ignore.
Transcript
Page 1: INTRODUCTION: Ogundipe v. Mukasey Katigbak1215-Whalen.pdfNothing Prevents Considering Other Evidence on Motion or Appeal Even If It Was Never Submitted with the Original Petition --Sometimes

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Nothing Prevents Considering Other Evidence on Motion or Appeal Even If It Was Never Submitted with the Original Petition --Sometimes

By Joseph P. Whalen (Wednesday, December 14, 2016)

INTRODUCTION: Ogundipe v. Mukasey; Katigbak; and Motions

To be clear from the start, this article is aimed at USCIS’ AAO Appeals Officers, the

Immigration and Naturalization Adjudications Officers at all USCIS Offices, and I suppose ICE

Trial Attorneys, as well as all of their respective customers and/or respondents (and their counsel).1

The rather lengthy, tongue-twisting title of this article is largely drawn from the second sentence

in the quote from Ogundipe, infra. The principle embodied within it is useful beyond the context

of “grandfathering” for legalization. If “nothing in the applicable statutes or regulations []

prevents an IJ in removal proceedings from considering other evidence that a petition was

approvable when filed, even if that evidence was never submitted in conjunction with the original

petition”, then the same principle should also apply to administrative appeals and motions,

sometimes. It is especially appropriate to accept new evidence when trying to prove eligibility at

time of filing the original petition by proving facts that existed at that time. An IJ is not technically

entertaining an appeal from, or motion on, the USCIS denial of a visa petition but instead, the IJ

would be ruling on the “renewal” of a denied adjustment application, USCIS Form I-485. The

validity of his original visa petition was critical to his adjustment application.

In Ogundipe, the applicant sought to be “grandfathered” for adjustment of status under the

special ameliorative provisions2 of INA § 245(i) [8 U.S.C. § 1255(i)] based upon a new visa

petition based further upon a prior visa petition which, incidentally but irrelevantly, was not

approved. The key to one’s “present” eligibility for adjustment based on a newly filed visa petition

is whether or not the prior visa petition was approvable when filed. It did not have to be approvable

as filed, nor did it actually have to have been approved in order to qualify for grandfathering

purposes. Grandfathering required for INA § 245(i) hinges on having met a filing deadline referred

1 Please bear with me, I sometimes meander (a lot) but I usually make it from point A to point B, eventually. Come

along on this journey, walk with me; talk with me, as I often say when dealing with folks face-to-face.

2 I hate to remind opponents of immigration about “legalization” but Ogundipe is too important to ignore.

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to as a “sunset date”. Congress had briefly brought this special provision back to LIFE3 with a new

filing deadline (April 30, 2001). What needed to have been filed was either an application for a

permanent labor certification, or a visa petition for: (1) a family-based; (2) an employment-based;

or (3) a “special” immigrant.4 The critical point is that whatever was filed in order to beat the

deadline, had to be approvable when filed. There were many “skeletal” filings that would naturally

require additional evidence which is acceptable, but the petition must not have been fraudulent or

patently without merit, i.e., must have been properly filed, meritorious in fact, and non-frivolous.

Mr. Ogundipe provided additional, never-before-submitted, evidence to the IJ in order to

demonstrate that he was, in fact, eligible when the original petition was filed. By taking an overly

narrow, constrictive, and incorrect reading of the regulations and case law; evidence that purported

to demonstrate eligibility was improperly excluded from consideration. The IJ and BIA excluded

it from consideration merely because it had not previously been offered for consideration before

USCIS. They were determined to only review the administrative record as it existed before the

Director. The newly offered evidence related back to eligibility at time of filing the original visa

petition.5 Ogundipe’s “new” evidence did not purport to offer any “new” facts relating to

eligibility factors which came into being after the original petition’s date of filing. The

circumstances that existed at the time of filing may be demonstrated with whatever the applicant

can find. While no newly minted facts could be considered, newly minted documentation might

be accepted for consideration. Some visa petitions rely on “support letters” of one variety or

another. It could be a “job description with a list of duties”, an “evaluation of education”,

“verification” of work experience and training, or maybe a letter “memorializing” a verbal

agreement/oral contract, among other things. New papers stating old facts are OK by me. The

regulation calls for affidavits to support new facts to be provided in Reopened proceedings.

In this case, the Fourth Circuit determined that too much weight had been given to the fact

that Ogundipe’s original petition had been denied. While Ogundipe did not receive the outcome

he desired, significant procedural errors were made in the administrative proceedings below. The

3 It was a piece of legislation known as the LIFE Act found in Public Law 106-553.

4 Ogundipe relied on an I-360 petition for a variety of EB-4 category “special immigrant” visa, defined in INA §

101(a)(27)(C). The petition/application forms include, at least these: I-526, I-130, I-730, I-140, or an application for

labor certification.

5 Ogundipe sought status as a “special immigrant religious worker”.

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Fourth Circuit sought to level the playing field by putting the administrative agencies and their

customers “on notice” of these mistakes, and describing the correct approach.

“… [T]he determination of whether a visa petition is approvable when filed is not limited

to the question of whether the petition was actually approved. We find nothing in the

applicable statutes or regulations that prevents an IJ in removal proceedings from

considering other evidence that a petition was approvable when filed, even if that evidence

was never submitted in conjunction with the original petition. This conclusion flows from

the text of § 1245.10(a)(3).6 "Meritorious" means "meriting a legal victory" or "having

legal worth," Black's Law Dictionary (8th ed.2004), but does not require actual legal

success. Moreover, § 1245.10(a)(3) requires that the determination of whether a petition is

meritorious in fact "be made based on the circumstances that existed at the time the

qualifying petition or application was filed." This provision contemplates that evidence

other than that actually submitted in support of the petition might be considered for

purposes of determining whether an alien is grandfathered.”

Ogundipe v. Mukasey, 541 F. 3d 257, 261-262 (4th Cir. 2008). See also: Jara-Riero and Jara-

Espinol, 24 I&N Dec. 267, 268-269 (BIA 2007): (“… [A] visa petition is not approvable when

filed if it “is fraudulent or if the named beneficiary did not have, at the time of filing, the

appropriate family relationship or employment relationship that would support the issuance of an

immigrant visa.” Adjustment of Status To That Person Admitted for Permanent Residence;

Temporary Removal of Certain Restrictions of Eligibility, 66 Fed. Reg. 16,383, 16,385 (Mar. 26,

2001) (Supplementary Information).)” The same FR Interim Rule further noted, at 16385, the

following Q&A, in pertinent part: “When Is an Immigrant Visa Application ‘‘Approvable When

Filed’’ for Grandfathering Purposes? … It is important to note, though, that all eligibility

requirements must be satisfied before an immigrant visa petition can be approved. A visa petition

will not qualify an alien for grandfathering unless the Service [now USCIS] is able to determine,

based on the available information (including additional evidence submitted by the petitioner after

the filing of the petition) that the petition was approvable when filed.”

6 Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section

204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly

filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This

determination will be made based on the circumstances that existed at the time the qualifying petition or application

was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was

later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the

alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status

under section 245(i) of the Act.

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WHEN IS A FACT ACTUALLY NEW IN A MOTION TO REOPEN?

A motion to reopen must state the new facts to be provided and be supported by affidavits

or other documentation. 8 C.F.R. § 103.5(a)(2). However, any new facts and information must

relate back to eligibility at the time the Petitioner or Applicant filed the petition or application. See

8 C.F.R. § 103.2(b)(1), (12); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r

1971). The facts are only “new” in the sense that they were not previously presented, but they truly

did exist at the time of original filing. The above cited regulation, infra, is drawn from the cited

precedent decision. AAO seems to be deeply in love with the main concept drawn from Katigbak.

In fact, it seems that most of USCIS is in love with Katigbak. I am not. Katigbak has its proper

place but it does have a specific context and concrete limits. For the benefit of the reader, here is

the text of some of the pertinent regulations, and an explanatory excerpt from an AAO decision.

8 C.F.R. § 103.2(b)(1)

Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible

for the requested benefit at the time of filing the benefit request and must continue to be

eligible through adjudication. Each benefit request must be properly completed and filed

with all initial evidence required by applicable regulations and other USCIS instructions.

Any evidence submitted in connection with a benefit request is incorporated into and

considered part of the request.

8 C.F.R. § 103.2(b)(12)

Effect where evidence submitted in response to a request does not establish eligibility at

the time of filing. A benefit request shall be denied where evidence submitted in response

to a request for evidence does not establish filing eligibility at the time the benefit request

was filed. A benefit request shall be denied where any benefit request upon which it was

based was filed subsequently.

“Requirements for Motions to Reopen

The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states:

A motion to reopen must [(1)] state the new facts to be provided in the reopened

proceeding and [(2)] be supported by affidavits or other documentary evidence....

This provision is supplemented by the related instruction at Part 4 of the Form I-290B,

which states:

Motion to Reopen: The motion must state new facts and must be supported by

affidavits and/or documentary evidence.

Further, the new facts must possess such significance that, "if proceedings ... were

reopened, with all the attendant delays, the new evidence offered would likely change the

result in the case." Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also

Maatougui v. Holder, 738 F.3d 1230, 1239-40 (10th Cir. 2013).”

Matter of C-H-H-S-, Inc., ID# 154509 (AAO Nov. 3, 2016), at p. 2.

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EB-5: Izummi adopts Katigbak – BUT…

In my opinion, INS’ AAO took Katigbak beyond its intended scope in two subsequent

precedents. The first I want to address is Matter of Izummi, 22 I&N Dec.169 (AAO 1998). It

is one in a suite of four EB-5 precedent decisions. Izummi is noted for its prohibition of material

changes after filing a petition in an effort to make a deficient petition conform to legal

requirements. Id at p. 175. A major point of contention throughout the EB-5 industry, is the

meaning of “material change”. EB-5 deals with the business world which can be highly

complex, competitive, dynamic, and ever-changing. Commerce moves at its own pace which

is usually exponentially faster than USCIS adjudications. Post-filing changes are practically

unavoidable.

A blanket prohibition against unclear, vague and/or undefined changes is

understandable but to prohibit any and all changes, is unrealistic for nearly all businesses. A

blanket prohibition created by petty, picky, and suspicious bureaucrats who were interpreting

immigration law based on one specific case in the old I.N.S. “Culture of NO!” has proven

itself to be disastrous in practical application by the current benefits determination agency

known as USCIS. Plans change. Unfortunately, the misunderstanding noted above is exactly

what the application of Izummi devolves into, in too many cases. However, if the prohibition

on material changes is clearly delineated and is confined to specific aspects of an “EB-5 deal”

which are static and unchanging, such as contracts or other legal documentation; then that

prohibition represents a reasonable expectation on the part of USCIS, from I-526 petition filing

until conditional resident status is lifted.

Ultimately, at the I-829 stage, USCIS must be amenable to, and is legally required to

accept, the facts when an underlying business venture or pooled investment has changed, even

drastically, as long as the petitioner can meet the INA § 216A [8 U.S.C. § 1186b] requirements

for lifting of conditions. If legal requirements are met, then conditions must be lifted because

this decision is not discretionary. The only discretionary aspects involve the waiver or

extension of filing deadlines and waiver of an interview in connection with the I-829

adjudication. I strongly urge that the resulting business does not wander too far from the

business plan presented up front because this would most likely cause an additional delay in

the adjudication. In keeping with that sentiment, during the preliminary stages of the EB-5

process, stability breeds confidence. For example, the marketing materials containing the sales

pitch cannot be “ever-changing” in regard to the critical details about the investment vehicle

because that approach could easily foster and hide fraud of one sort or another, such as “bait

& switch” tactics. In the long run, some amount of change to business plans seems to be

inevitable. Change can be managed and it seems like a better idea to me to ‘anticipate and

manage’ change, rather than ‘fight’ it.

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IMMIGRANT PRINCIPLE APPLIED TO NONIMMIGRANTS IN ERROR:

Michelin adopts Katigbak

Another precedent which adopted a harsh and rigid “eligibility at time of filing” stance is

Matter of Michelin Tire Corporation, 17 I&N Dec. 248 (R.C. 1978). This case dealt with the

nonimmigrant intracompany transferee visa category (L-1A & L-1B). Each visa category or

classification is defined in the law. The law controlling the L-1 visa is, in my opinionated opinion,

at odds with the Katigbak misinterpretation adopted in Michelin. There is a key phrase in the

statute, highlighted below. “Application for admission” is defined in the statute elsewhere and

refers to the physical act of presenting oneself for inspection to a CBP Officer at any port-of-

entry: airports, seaports, land borders, or preclearance locations (pre-flight inspection stations)

abroad. In the alternative, if applying for a change of status inside the United States, it will be a

USCIS Adjudicator making a decision rather than a CBP Inspector making the decision as to the

applicant’s admissibility.

The phrase “application for admission” does not mean the filing of an application form,

unfortunately, Michelin, confuses these two distinct actions. Incidentally, the L-1 nonimmigrant

visa request actually begins with the filing of an I-29 or I-120S “petition” form rather than an

“application” form, but that is a discussion for another time. See INA §101(a)(4) [8 U.S.C.

§1101(a)(4)] (The term "application for admission" has reference to the application for admission

into the United States and not to the application for the issuance of an immigrant or nonimmigrant

visa.) It is my opinion that this mistake has led to the creation of an ultra vires regulatory filing

requirement because it imposes a condition beyond that which is in the controlling statute. See 8

C.F.R. § 214.2(l)(3) (Evidence for individual petitions. An individual petition filed on Form I-129

shall be accompanied by: … (iii) Evidence that the alien has at least one continuous year of full-

time employment abroad with a qualifying organization within the three years preceding the filing

of the petition.) The preceding requirements might be “convenient” but they add requirements

beyond those in the statute and, “… neither the USCIS nor an AAO may unilaterally impose novel

substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5 Love Korean

Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008).” Kazarian, at 1124, infra.

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The AAO's conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(vi).

Nothing in that provision requires a petitioner to demonstrate the research community's

reaction to his published articles before those articles can be considered as evidence, and

neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary

requirements beyond those set forth at 8 C.F.R. § 204.5. Love Korean Church v. Chertoff,

549 F.3d 749, 758 (9th Cir.2008). While other authors' citations (or a lack thereof) might

be relevant to the final merits determination of whether a petitioner is at the very top of his

or her field of endeavor, they are not relevant to the antecedent procedural question of

whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3).

“If the agency intended to impose [peer citations] as a threshold requirement, we have little

doubt that such records would have been included among the detailed substantive and

evidentiary requirements set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean Church,

549 F.3d at 758.

Kazarian v USCIS, 596 F.3d 1115, 1124-1125 (9th Cir. 2010). Please note that 8 C.F.R. §

214.2(l)(3) adds the requirements that the one-year of employment must be: (a) full-time, and (b)

within the three years immediately preceding the “filing date” as opposed to the date of application

for admission, meaning the day that the alien shows up at the CBP port-of-entry or date of USCIS

approval of a change of status. This position is also supported by the implementing regulations

pertaining to E13/E18 (EB-1C) first preference immigrant classification for multinational

executives or managers. See Immigration and Nationality Act (INA or the Act) section

203(b)(1)(C) [8 U.S.C. § 1153(b)(1)(C)]. The regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) sets the

timeframe for the “three-year” period of a beneficiary who is already in the U.S. working for the

petitioner as calculated backwards from the “date of entry as a nonimmigrant” rather than I-129

or I-129S petition “filing date”. This seems to anticipate permanent transfer of L-1 employees.

(j) Certain multinational executives and managers. (1) A United States employer may file

a petition on Form I-140 for classification of an alien under section 203(b)(1)(C) of the Act

as a multinational executive or manager.

* * * * *

(3) Initial evidence—(i) Required evidence. A petition for a multinational executive or

manager must be accompanied by a statement from an authorized official of the petitioning

United States employer which demonstrates that:

* * * * *

(B) If the alien is already in the United States working for the same employer or a

subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien

was employed overseas, in the three years preceding entry as a nonimmigrant, the alien

was employed by the entity abroad for at least one year in a managerial or executive

capacity;

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The above situation about L-1s transitioning to lawful permanent resident status was

actually anticipated in the very first Precedent Decision pertaining to intracompany transferees.

See Matter of Bocris, 13 I&N Dec. 601 (Reg. Comm’r 1970), which included the following

discussion, in dicta.

“The legislative history of such amendment discloses that the above provision was intended

to help eliminate problems faced by American companies having offices abroad in

transferring key personnel freely within the organization; that, previously, international

executives coming for temporary assignments have been forced to apply for immigrant

visas and qualify as permanent resident aliens; that the class of persons eligible for such

nonimmigrant visas has been narrowly drawn and it is anticipated that their number will

not be very large; that the stay under an “L” visa should not exceed three years, although

bona fide requests for extension beyond such time as well as applications for adjustment

for permanent residence would be considered. (House Report (Committee on the

Judiciary), No. 91-351, (To accompany S. 2593)).”

Id. at p. 602-603. Congress envisioned a small number of L-1 intracompany transferees but did

not place any numerical cap on this visa category. Instead, Congress has heaped exorbitant fees on

these visas, but they have not slowed these petitions very much at all. Oh! How has this category

gotten so blown out of proportion? That is a question that deserves its own article! It cannot be

sufficiently addressed, let alone answered, here and now. I won’t try.

COMPARE STATUTORY PROVISIONS TO ABOVE REGULATIONS & EXCERPTS

INA § 101(a)(15)(L) [8 U.S.C. § 1101(a)(15)(L)] Definitions.

…. (L) subject to section [INA § 214(c)(2)] 1184(c)(2) of this title, an alien who, within 3

years preceding the time of his application for admission into the United States, has been

employed continuously for one year by a firm or corporation or other legal entity or an

affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order

to continue to render his services to the same employer or a subsidiary or affiliate thereof

in a capacity that is managerial, executive, or involves specialized knowledge, and the alien

spouse and minor children of any such alien if accompanying him or following to join him;

INA § 214(c)(2) [8 U.S.C. § 1184(c)(2)] Admission of Nonimmigrants.

(c) Petition of importing employer

(Ordinary I-129 Petition Provision)

(1) The question of importing any alien as a nonimmigrant under subparagraph (H), (L),

(O), or (P)(i) of section 1101(a)(15) of this title (excluding nonimmigrants under section

1101(a)(15)(H)(i)(b1) of this title) in any specific case or specific cases shall be determined

by the Attorney General [Secretary of Homeland Security], after consultation with

appropriate agencies of the Government, upon petition of the importing employer. Such

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petition, shall be made and approved before the visa is granted. The petition shall be in

such form and contain such information as the Attorney General [Secretary of Homeland

Security] shall prescribe. The approval of such a petition shall not, of itself, be construed

as establishing that the alien is a nonimmigrant. For purposes of this subsection with respect

to nonimmigrants described in section 1101(a)(15)(H)(ii)(a) of this title, the term

"appropriate agencies of Government" means the Department of Labor and includes the

Department of Agriculture. The provisions of section 1188 of this title shall apply to the

question of importing any alien as a nonimmigrant under section 1101(a)(15)(H)(ii)(a) of

this title.

(Blanket I-129S Petition Provision)

(2)(A) The Attorney General [Secretary of Homeland Security] shall provide for a

procedure under which an importing employer which meets requirements established by

the Attorney General [Secretary of Homeland Security] may file a blanket petition to

import aliens as nonimmigrants described in section 1101(a)(15)(L) of this title instead of

filing individual petitions under paragraph (1) to import such aliens. Such procedure shall

permit the expedited processing of visas for admission of aliens covered under such a

petition.

A DEEPER LOOK AT Katigbak

This article began with a focus on a petitioner’s ability to offer new evidence in order to

prove eligibility at time of filing an immigrant visa petition for a preference classification visa.

Katigbak was referenced but the holding was not provided. It is time to add it to this discussion.

To be eligible for preference classification under section 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.

The reader will note that in Katigbak, one of the Regional Commissioners of I.N.S.

specifically excluded from consideration any “[e]ducation or experience acquired subsequent to

the filing date”. The Regional Commissioner’s reasoning focused on the issue of fairness in

issuing a limited number of preference visas in oversubscribed categories and/or to beneficiaries

from countries that exceed their annual limited visa allocations. This was, and remains, a

recognition of the reality of the filing date of an approved preference visa petition transforming

into a priority date for visa allocation and issuance purposes. The visa category involved in

Katigbak would most likely equate to an EB-3 visa under current statutory provisions.

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USCIS Form I-290B -- More About New Evidence

The principle espoused in Ogundipe, supra, has an important role to play in USCIS’

appeals and motion processes. In appeals or motions filed on USCIS Form I-290B, USCIS

Adjudicators and AAO Appeals Officers need to distinguish between allowable and prohibited

“new evidence”. New evidence of new facts about newly acquired qualifications are out of

bounds. New evidence of old facts, which existed at time of filing, is perfectly acceptable. The I-

290B Form Instructions generally track the corresponding regulations as noted above. The

regulation at 8 C.F.R. § 103.5(a)(2), relating to Motions to Reopen, expressly invites new evidence,

thus dealing with matters of fact and fact-finding. The regulation at 8 C.F.R. § 103.5(a)(3), relating

to Motions to Reconsider, expressly calls for identification of an error as to a matter of law, thus

demanding that any such error was made based on the record as it existed when the decision was

rendered. However, when there has been passage of a new law which is retroactive (normally

ameliorative in nature) or a higher legal authority has reinterpreted a statute, precedent, or

regulation, then such change in the law is itself a “new fact” to be presented in a Motion to Reopen.

There has sometimes been confusion between the requirements of these two types of Motions. It

seems that the IJ and BIA panel that denied Ogundipe’s applications for relief and dismissed the

appeal, experienced some confusion about what “new” evidence they were allowed to consider.

PRACTICAL APPLICATIONS OF THIS DISCUSSION:

EB-1A vs. EB-2 with NIW vs. the Prohibited “Do-Over”

You may be asking something like: “Hey, what’s the point of this?” I am emphasizing the

distinction between motions because it is part of my ongoing effort to advocate for improved

training for USCIS Adjudicators as well as among immigration practitioners in Community Based

Organizations (CBOs), Non-Governmental Organizations (NGOs), state and local government

agencies, and in the private sector. The underlying principles and lessons from Katigbak and

Ogundipe have very obvious practical applications in various other visa categories. For example,

EB-1A, aliens of extraordinary ability hopefuls, seem to have great difficulty recognizing the

evidentiary distinctions. In reviewing numerous AAO non-precedents posted in this category, I

see petitioners continually submitting evidence of post-filing achievements. They have published

new articles, served in new critical roles, acted as judges on new panels or committees. While their

achievements are laudable, they happened after the “priority date” and are therefore, irrelevant.

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New developments after the filing date cannot establish eligibility if the Petitioner or

Beneficiary was not actually eligible at the time of filing. See 8 C.F.R. § 103.2(b)(1); see also

Katigbak, at 49 (USCIS cannot properly approve the petition at a future date after the petitioner

or beneficiary becomes eligible under a new set of facts). Once again I must draw the reader’s

attention to the use of the word “petition” which does not encompass every possible “benefit

request” in the INA. With the above points made as clear as I can, there are certain post-filing

developments or achievements that might be of some relevance in other situations. Most of those

potential situations involve other benefit types such as citizenship claims, adjustment of status,

naturalization, or Regional Center Designation. Those other applications may be perfected post-

filing because the critical time is not the filing date but instead, the date of final adjudication.

For instance, there might be some potential value in post-filing achievements in visa

petitions seeking EB-2 classification and a National Interest Waiver (NIW). How can this be?

Well, when a claim is made in the initial NIW request based on evidence that an adjudicator

previously evaluated and determined to be “speculative” or simply “insufficient”, new evidence

which demonstrates earlier “predictions” coming true, could sway the officer who is adjudicating

a motion or appeal in a de novo review of all of the evidence on the record as a whole. If I were

faced with performing a de novo review that added new evidence which bolstered the forward-

looking assertions made at time of filing a NIW “application”, I would likely take this new

information into consideration. However, if totally “new arguments” were advanced on appeal or

motion, based on “new evidence” of “new facts and information”, I would likely exclude it. The

latter scenario would call for re-filing because of the longstanding prohibition against advancing

new theories and arguments concerning eligibility at such a late stage in an administrative

proceeding. There’s no “do-over”.

New requests need new petitions filed, with associated fees paid. AAO has explained time

and again about the practical considerations of USCIS’ fee-funded structure. Unlike the vast

majority of federal agencies, USCIS is principally funded by the fees it collects. The following

excerpt consists of a common blurb that explains this uncommon situation fairly well.

“The Director determined that the Petitioner's documents did not meet any of the regulatory

categories of evidence for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Although the

Petitioner had checked box "1.i." under Part 2 of the Form I-140 petition requesting a

national interest waiver as an advanced degree professional or an individual of exceptional

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ability, the Petitioner contends on appeal that he meets the regulatory criteria for

extraordinary ability at 8 C.F.R § 204.5(h)(3)(iii), (v), (vi), (vii), (viii), and (ix). The

Petitioner, however, has not stated that he seeks classification as an individual of

extraordinary ability at any time throughout these proceedings. Regardless, there is no

statute, regulation, or case law that permits a petitioner to change the classification of a

petition on appeal. In addition, the Ninth Circuit has determined that once USCIS

concludes that an individual is not eligible for the specifically requested classification, the

agency is not required to consider, sua sponte, whether he is eligible for an alternate

classification. Brazil Quality Stones, Inc., v. Chertoff, 286 Fed. Appx. 963 (9th Cir. July

10, 2008).

Furthermore, USCIS is statutorily prohibited from providing a petitioner with multiple

adjudications for a single petition with a single fee. The initial filing fee for the Form I -

140 covered the cost of the Director's adjudication of the I-140 petition under section

203(b)(1)(A) of the Act. Pursuant to section 286(m) of the Act, 8 U.S.C. § 1356, USCIS is

required to recover the full cost of adjudication. In addition to the statutory requirement,

Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all

direct and indirect costs of providing a good, resource, or service.2 If the Petitioner seeks

classification under a different immigrant visa classification, then he must file a separate

Form I -140 petition, with the accompanying fee, requesting the new classification.”

* * * _____________________

“2 See http://www.whitehouse.gov/omb/circulars/a025/a025.html”

Matter of K-E-G-, ID# 87725 (AAO Oct. 31, 20 16) at pp. 3-4. Beyond the necessity of recouping

costs of each specific adjudication, USCIS’ fees must also cover humanitarian programs, fee

waivers, operating expenses, payroll, overhead costs, and infrastructure improvements. Congress

only throws a little bit of funding for the E-Verify and SAVE Programs, and the occasional targeted

funding. For example, in the mid to late 1990s, Congress threw money at INS for naturalization

backlog reduction and customer service improvements, but next to nothing since. As far as

“benefit request” adjudications were concerned, INS also had to cover those costs through the

addition of a surcharge on the fees. On the other hand, enforcement activities were always funded

by Congress, just as they fund ICE and CBP today. As implied in the title, sometimes things are

not as they seem and there are rarely any “absolute” positions on any subject. In other words, pretty

much whatever it is, it’s just not that simple!

That’s My Two-Cents, For Now!


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