The Case for AAO Appeals for I-829 Petitions By Joseph P. Whalen (October 13, 2014)

Transcription

1 The Case for AAO Appeals for I- Petitions By Joseph P. Whalen (October 1, ) I. INTRODUCTION As things stand now, when an I-, Petition by Entrepreneur to Removal Conditions is denied, USCIS is supposed to terminate status and issue a Notice to Appear (NTA) for Removal Proceedings and place the alien s future in the hands of an Immigration Judge (IJ). Technically, the alien can renew their petition and try to make their case to the IJ. The reality is that no IJ wants to deal with and precious few, if any, are knowledgeable enough to tackle the issues involved. The natural progression for the case is a rubber-stamp of whatever USCIS determined and IF that case were further challenged THEN it would go to the Board of Immigration Appeals (BIA) who would perhaps expound a bit but in the end merely mask their own rubber-stamp of whatever USCIS determined. There would be nothing wrong with that because, USCIS would most likely have certified the denial to AAO before releasing it to EOIR through issuance of the NTA. One more consideration is that ICE counsel would not be equipped to deal with the intricacies involved so would also most likely be relying on whatever USCIS had determined. In the end, IF the BIA decision were further challenged, THEN it would go to the Circuit Court of Appeals with jurisdiction. The final reality is that the Circuit Court would be more likely than not reviewing the essence of the AAO Decision. The Circuit Courts have a wider arrange of experience in that they deal with the full gamut of criminal and civil cases across many contexts so would be, or could easily become, well-equipped to substantially tackle the intricate questions involved in an EB- case. They have done it before. II. A NOTE ABOUT THE CURRENT REGULATIONS As things now stand, the bulk of the EB- regulations were written by Legacy INS which was a law enforcement agency (LEA) first and foremost. The benefits Contact: joseph.whalen@gmail.com () 0- or () -0 Page 1

2 1 1 adjudications were a very large part of the workload but were subjugated to the gung ho quasi-military attitudes and behaviors associated with the law enforcement side of the agency. The current regulations indicate that there is no direct appeal to the AAO for a denied I- and the status is to be terminated and an NTA is to be issued, period. However, there is also some wiggle room that allows USCIS to accept late filed I-s and there is authority to stay proceedings. In essence there is ample authority for an IJ to stop removal proceedings either by administrative closure, terminating proceedings, or granting a joint motion to remand the case back to USCIS. Current regulations are awkward and cumbersome. IF there were a direct AAO appeal path, it would be well worth it and more cost effective. Under the current scheme, many I- Denials get certified to AAO anyway and there is no fee charged for it. In addition, AAO would then be in much better position to issue Precedent Decisions relating to this aspect of EB- via decisions on direct appeals rather than on any certified decision. III. INA A The initial conditional nature of an EB- immigrant s status is mandated and controlled by statute. The criteria necessary for the lifting of conditions is stated in, and the implementing regulations derive from, the statute. The statute does not forbid an administrative appeal to AAO. Have a look for yourself, more discussion on this topic to follow the raw statute (included for easy reference). INA A [ U.S.C. b] Conditional permanent resident status for certain alien entrepreneurs, spouses, and children (a) In general (1) Conditional basis for status Notwithstanding any other provision of this chapter, an alien entrepreneur (as defined in subsection (f)(1) of this section), alien spouse, and alien child (as defined in subsection (f)() of this section) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have Contact: joseph.whalen@gmail.com () 0- or () -0 Page

3 1 1 obtained such status on a conditional basis subject to the provisions of this section. () Notice of requirements (A) At time of obtaining permanent residence At the time an alien entrepreneur, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the Attorney General [USCIS] 1 shall provide for notice to such an entrepreneur, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) of this section to have the conditional basis of such status removed. (B) At time of required petition In addition, the Attorney General [USCIS] shall attempt to provide notice to such an entrepreneur, spouse, or child, at or about the beginning of the 0-day period described in subsection (d)()(a) of this section, of the requirements of subsection (c)(1) of this section. (C) Effect of failure to provide notice The failure of the Attorney General [USCIS] to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an entrepreneur, spouse, or child. (b) Termination of status if finding that qualifying entrepreneurship improper [INCLUDES: FRAUD/MISREPRESENTATION/ANY CRIMINALITY] (1) In general In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a) of this section, if the Attorney General [USCIS] determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that (A) the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States, 0 1 (B) (i) the alien did not invest, or was not actively in the process of investing, the requisite capital; or (ii) the alien was not sustaining the actions described in clause (i) throughout the period of the alien's residence in the United States; or 1 The authority changed from the Attorney General to the Secretary of Homeland Security then delegated to USCIS. References to the Service are now references to USCIS. USCIS is shown for convenience sake. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

4 (C) the alien was otherwise not conforming to the requirements of section 1(b)() of this title, [INA (b)()] then the Attorney General [USCIS] shall so notify the alien involved and, subject to paragraph (), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination. () Hearing in removal proceeding Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General [USCIS] to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met. (c) Requirements of timely petition and interview for removal of condition (1) In general In order for the conditional basis established under subsection (a) of this section for an alien entrepreneur, alien spouse, or alien child to be removed (A) the alien entrepreneur must submit to the Attorney General[USCIS], during the period described in subsection (d)() of this section, a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1) of this section, and (B) in accordance with subsection (d)() of this section, the alien entrepreneur must appear for a personal interview before an officer or employee of the Service [USCIS] respecting the facts and information described in subsection (d)(1) of this section. () Termination of permanent resident status for failure to file petition or have personal interview (A) In general In the case of an alien with permanent resident status on a conditional basis under subsection (a) of this section, if (i) no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or (ii) unless there is good cause shown, the alien entrepreneur fails to appear at the interview described in paragraph (1)(B) (if required under subsection (d)() of this section), the Attorney General [USCIS] shall terminate the permanent resident status of the alien (and the alien's spouse and children if it was obtained on a conditional basis under this section or section a of this title) as of Contact: joseph.whalen@gmail.com () 0- or () -0 Page

5 the second anniversary of the alien's lawful admission for permanent residence. (B) Hearing in removal proceeding In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A) [ failure to file I- ], the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B). () Determination after petition and interview (A) In general If (i) a petition is filed in accordance with the provisions of paragraph (1)(A), and (ii) the alien entrepreneur appears at any interview described in paragraph (1)(B), the Attorney General [USCIS] shall make a determination, within 0 days of the date of the such filing or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) of this section and alleged in the petition are true with respect to the qualifying commercial enterprise. (B) Removal of conditional basis if favorable determination If the Attorney General [USCIS] determines that such facts and information are true, the Attorney General [USCIS] shall so notify the alien involved and shall remove the conditional basis of the alien's status effective as of the second anniversary of the alien's lawful admission for permanent residence. (C) Termination if adverse determination If the Attorney General [USCIS] determines that such facts and information are not true, the Attorney General [USCIS] shall so notify the alien involved and, subject to subparagraph (D), [?the Attorney General?] shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination. (D) Hearing in removal proceeding Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a It is unclear if the power to terminate status remains with the Attorney General in this clause. An argument may be made either way but I would lean towards yes, send the alien to an Immigration Judge UNLESS an AAO appeal process is adopted. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

6 proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General [USCIS] to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) of this section and alleged in the petition are not true with respect to the qualifying commercial enterprise. (d) Details of petition and interview (1) Contents of petition Each petition under subsection (c)(1)(a) of this section shall contain facts and information demonstrating that the alien (A) (i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (B) is otherwise conforming to the requirements of section 1(b)() of this title. () Period for filing petition (A) 0-day period before second anniversary Except as provided in subparagraph (B), the petition under subsection (c)(1)(a) of this section must be filed during the 0-day period before the second anniversary of the alien's lawful admission for permanent residence. (B) D[L]ate petitions for good cause Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General [USCIS] good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). (C) Filing of petitions during removal In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B). () Personal interview The interview under subsection (c)(1)(b) of this section shall be conducted within 0 days after the date of submitting a petition under subsection (c)(1)(a) of this section and at a local office of the Service [USCIS], designated by the Attorney In this reference, since it was written prior to the creation of DHS, may now be a shared authority allowing USCIS to refrain from issuing an NTA, ICE Counsel to join a Motion to Terminate/Admin Close and/or Remand the case back to USCIS, or an IJ to administratively close or terminate proceedings, without prejudice to re-calendar. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

7 General [USCIS], which is convenient to the parties involved. The Attorney General [USCIS], in the Attorney General's [its] discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate. (e) Treatment of period for purposes of naturalization For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. [This allows filing an N-00 but does not allow taking the Oath until conditions are successfully removed.] (f) Definitions In this section: (1) The term alien entrepreneur means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under section 1(b)() of this title. () The term alien spouse and the term alien child mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien entrepreneur. () The term commercial enterprise includes a limited partnership. IV. WHAT DOES THE STATUTE DEMAND FOR I- PROCESSING? In essence, INA A (c)()(a) demands that USCIS make a determination within 0 days of filing OR of an interview whichever is LATER, and (C) demands that LPR status must be terminate if the result is to deny the petition. When Congress passed the Homeland Security Act in 0 (HSA 0), there was a general shift in statutory authority. USCIS was carved out of the former INS and landed in DHS under the Secretary of Homeland Security. AAO landed in USCIS and exercises delegated authority from the Secretary. The EOIR remained in DOJ under the Attorney General. Immigration Judges and the BIA exercise the authority delegated from the Attorney General. The two functions stated in INA A (c)()(c), should be split between the Secretary and the Attorney General. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

8 1 1 I have found over the years that folks are quite willing to waive deadlines whenever it is in their favor to do so, IF it is within their power to do so. The alien entrepreneur may waive the statutory deadline imposed on USCIS by either expressly doing so OR by not demanding that it be enforced. USCIS is required to actually reach a decision as to the question of: removal of conditions versus termination of status. Additional Due Process can be affirmatively provided by regulation or a regulation may simply serve to clarify the above-referenced split in INA A (c)()(c). When additional rights are offered even if just as an option, I can t see how any customer affected by them could object to them. With all of the foregoing in mind, I sure hope that USCIS will consider allowing at least optional AAO appeal rights for the I- Petition as opposed to immediate status termination and NTA issuance. Additionally, I don t like seeing aliens whose status should have been terminated, being allowed to languish and being forced to file lawsuits when an AAO appeal would potentially be more beneficial all around. V. CFR Petition by entrepreneur to remove conditional basis of lawful permanent resident status. (a) Filing the petition (1) General procedures. A petition to remove the conditional basis of the permanent resident status of an alien accorded conditional permanent residence pursuant to section (b)() of the Act must be filed by the alien entrepreneur on Form I-, Petition by Entrepreneur to Remove Conditions. The alien entrepreneur must file Form I- within the 0-day period preceding the second anniversary of his or her admission to the United States as a conditional permanent resident. Before Form I- may be considered as properly filed, it must be accompanied by the fee required under.(b)(1) of this chapter, and by documentation as described in paragraph (a)() of this section, and it must be properly signed by the alien. Upon receipt of a properly filed Form I-, the alien's conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition. The entrepreneur's spouse and children should be included in the petition to remove conditions. Children who have reached the age of twenty-one or who have married during the period of conditional permanent residence and the former spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional permanent residence, may be included in the alien entrepreneur's petition or may file a separate petition. () [Reserved] Contact: joseph.whalen@gmail.com () 0- or () -0 Page

9 () Physical presence at time of filing. A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside the United States at the time of filing, he or she must return to the United States, with his or her spouse and children, if necessary, to comply with the interview requirements contained in the Act. Once the petition has been properly filed, the alien may travel outside the United States and return if in possession of documentation as set forth in 1.1(b)(1) of this chapter, provided the alien complies with the interview requirements described in paragraph (b) of this section. An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with. of this chapter. () Documentation. The petition for removal of conditions must be accompanied by the following evidence: (i) Evidence that a commercial enterprise was established the alien. Such evidence may include, but is not limited to, Federal income tax returns; [(i) Evidence that the new commercial enterprise meets the a pplicable definitions and requirements as described in the controlling statute and in section., of this title.] (ii) Evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence; and (iii) Evidence that the alien sustained the actions described in paragraph (a)()(i) and (a)()(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements. (iv) Evidence that the alien created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees. In the case of a troubled business as defined in CFR.(j)()(ii), the alien entrepreneur must submit evidence that the commercial enterprise maintained t he number of existing employees at no less than the preinvestment level for the period following his or her admission as a conditional permanent resident. Such evidence may include payroll records, relevant tax documents, and Forms I-. () Termination of status for failure to file petition. Failure to properly file Form I- within the 0- day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent resident status and the initiation of deportation proceedings. The director shall send a written notice of termination and an order to show cause to an alien entrepreneur wh o fails to timely file a petition for removal of conditions. No appeal shall lie from this decision; however, the alien may request a review of the determination during deportation proceedings. In deportation proceedings, the burden of proof shall rest with the alien to show by a preponderance of the evidence that he or she complied with the requirement to file the petition within the designated period. The director may deem the petition to have been filed prior to the second anniversary of the alien's obtaining conditional permanent resident status and accept and A suggested change because current ()(i) is obsolete due to statutory change. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

10 consider a late petition if the alien demonstrates to the director's satisfaction that failure to file a timely petition was for good cause and due to extenuating circumstances. If the late petition is filed prior to jurisdiction vesting with the immigration judge in deportation proceedings and the director excuses the late filing and approves the petition, he or she shall restore the alien's permanent resident status, remove the conditional basis of such status, and cancel any outstanding order to show cause in accordance with. of this chapter. If the petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion by the alien and the Service. () Death of entrepreneur and effect on spouse and children. If an entrepreneur dies during the prescribed two-year period of conditional permanent residence, the spouse and children of the entrepreneur will be eligible for removal of conditions if it can be demonstrated that the conditions set forth in paragraph (a)() of this section have been met. (b) Petition review (1) Authority to waive interview. The director of the service center shall review the Form I- and the supporting documents to determine whether to waive the interview required by the Act. If satisfied that the requirements set forth in paragraph (c)(1) of this section have been met, the service center director may waive the interview and approve the petition. If not so satisfied, then the service center director shall forward the petition to the district director having jurisdiction over the location of the alien entrepreneur's commercial enterprise in the United States so that an interview of the alien entrepreneur may be conducted. The director must either waive the requirement for an interview and adjudicate the petition or arrange for an interview within 0 days of the date on which the petition was properly filed. () Location of interview. Unless waived, an interview relating to the Form I- shall be conducted by an immigration examiner or other officer so designated by the district director at the district office that has jurisdiction over the location of the alien entrepreneur's commercial enterprise in the United States. () Termination of status for failure to appear for interview. If the alien fails to appear for an interview in connection with the petition when requested by the Service, the alien's permanent resident status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence. The alien will be provided with written notification of the termination and the reasons therefore, and an order to show cause shall be issued placing the alien under deportation proceedings. The alien may seek review of the decision to terminate his or her status in such proceedings, but the burden shall be on the alien to establish by a preponderance of the evidence that he or she complied with the interview requirements. If the alien has failed to appear for a scheduled interview, he or she may submit a written request to the district director asking that the interview be rescheduled or that the interview be waived. That request should explain his or her failure to appear for the scheduled interview, and if a request for waiver of the interview, the reasons such waiver should be granted. If the district director determines that there is good cause for granting the request, the interview may be rescheduled or waived, as appropriate. If the district director waives the interview, he or she shall restore the alien's conditional permanent resident status, cancel any outstanding order to show cause in accordance with. of this chapter, and proceed to adjudicate the alien's petition. If the district director reschedules that alien's interview, he or she shall restore the alien's conditional permanent resident status, and cancel any outstanding order to show cause in accordance with. of this chapter. If the interview is rescheduled at the request of the alien, the Service shall not be required to conduct the interview within the 0-day period following the filing of the petition. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

11 (c) Adjudication of petition. (1) The decision on the petition shall be made within 0 days of the date of filing or within 0 days of the interview, whichever is later. In adjudicating the petition, the director shall determine whether: (i) A commercial enterprise was established [?funded?] by the alien; [?NCE meets applicable requirements?]; (ii) The alien invested or was actively in the process of investing the requisite capital; and (iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. (iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a troubled business as defined in CFR.(j)()(ii), the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years. () If derogatory information is determined regarding any of these issues or it becomes known to the government that the entrepreneur obtained his or her investment funds through other than legal means (such as through the sale of illegal drugs), the director shall offer the alien entrepreneur the opportunity to rebut such information. If the alien entrepreneur fails to overcome such derogatory information or evidence the investment funds were obtained through other than legal means, the director may deny the petition, terminate the alien's permanent resident status, and issue an order to show cause. If derogatory information not relating to any of these issues is determined during the course of the interview, such information shall be forwarded to the investigations unit for appropriate action. If no unresolved derogatory information is determined relating to these issues, the petition shall be approved and the conditional basis of the alien's permanent resident status removed, regardless of any action taken or contemplated regarding other possible grounds for deportation. (d) Decision (1) Approval. If, after initial review or after the interview, the director approves the petition, he or she will remove the conditional basis of the alien's permanent resident status as of the second anniversary of the alien's entry as a conditional permanent resident. He or she shall provide written notice of the decision to the alien and shall require the alien to report to the appropriate district office for processing for a new Permanent Resident Card, Form I-1, at which time the alien shall surrender any Permanent Resident Card previously issued. () Denial. If, after initial review or after the interview, the director denies the petition, he or she shall provide written notice to the alien of the decision and the reason(s) therefor, and shall issue an order to show cause why the alien should not be deported from the United States. The alien's lawful permanent resident status and that of his or her spouse and any children shall be terminated as of the date of the director's written decision. The alien shall also be instructed to surrender any Permanent Resident Card previously issued by the Service. No appeal shall lie from this decision; however, the alien may seek review of the decision in deportation proceedings. In deportation proceedings, the burden shall rest with the Service to establish by a Contact: joseph.whalen@gmail.com () 0- or () -0 Page

12 1 1 preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied. [ FR 1, May,, as amended at FR 0, Dec., ; FR, June, 0] It should be noted that the preceding regulations were only superficially updated in 0. They are woefully inadequate and out of touch with the current state of the law, as well as EB- theory and practice. They are also lacking in regard to current processing steps, such as the need to perhaps report to an ASC for biometrics collection rather than to a local district or field office. USCIS has announced plans to update EB- regulations I have offered some suggestions. I hope I am not alone in that effort. VI. WHAT DO THE CONTROLLING REGULATIONS TELL US? The I- is filed and adjudicated in accordance with CFR. as shown above and in accordance with the form instructions. I did have a little bit to do with the changes to those form instructions the last time the form was up for review. I pleaded with USCIS to do away with the redundant request for previously submitted court documents and to narrow the request to only any new items since the prior submission of such information. As long as the narrative has rolled around to the topic of information I want to point out the phrase facts and information which is rather ubiquitous in the statute but is reworded in the regulations pertaining to the lifting of conditions. To my mind, the popular phrase facts and information means presenting logical narrative or legal argument or brief which is supported by corroborating evidence leading to: (1) fact-finding, () the drawing of reasonable inferences, and () reaching a conclusion through sound judgment. When one has to show that money was spent and how it was spent, there are tons of pieces of paper to choose from. The information presented should be no more than what is necessary to demonstrate the desired facts. The corroborating evidence needs to be selected Contact: joseph.whalen@gmail.com () 0- or () -0 Page 1

13 1 1 carefully. At all costs, the kitchen sink approach to case preparation is to be avoided like the plague. That sloppy overly inclusive approach demonstrates confusion on the part of the petitioner or counsel and is most likely to beget further confusion on the part of the adjudicator. The myriad forms of evidence more likely than not to demonstrate job creation are highly variable. Certain documentation comes from among specific evidence listed in the regulation, such as for EB- direct jobs of the alien entrepreneur. When the alien investor is affiliated with a Regional Center and will be demonstrating EB- indirect jobs, then the task of evidence selection may be a bit more challenging. One must be clear of which facts are necessary to prove the job creation and then focus on determining which documents will demonstrate those facts. If the BP and EIA were well written and were actually followed, then they are the place to start the process of case preparation. Those foundational documents tell a story of a business and the reasonable methods used to support indirect job creation. When dealing with the somewhat abstract and debatable facts and information in an EB- case, especially in the Regional Center context, it would be highly desirable to have an in-house administrative appeal path. The EB- expertise resides within USCIS and it makes better sense to have the primary agency address the key questions before reaching an ultimate decision on the merits. A meritsbased decision is best made before releasing the case to any Immigration Court Removal Proceeding. The present reality is that many I-s that are to be denied are certified to AAO. At that juncture, the petitioner is notified and provided an opportunity to submit additional evidence and argument to support their version of the facts and information needed to lift conditions from LPR status. It s basically a no-fee automatic appeal. Contact: joseph.whalen@gmail.com () 0- or () -0 Page 1

14 VII. CONCLUSION I suggest that there be an affirmative right of appeal of the Form I-, a petition to lift conditions, to AAO which must be exhausted prior to either issuance of an NTA or any ability to file a lawsuit in District Court. Such appeal rights could be introduced through the anticipated EB- rulemaking process. By itself, under the current process, certification to AAO prevents the Denial of the Director or Chief from qualifying as a final agency action under the APA [ U.S.C. 1] and thereby preventing the filing of a petition in District Court for that type of review. It is also noted that the issuance of an NTA will block the ability to file a suit in District Court while the Removal Proceedings remain in-process. IF a Removal Order is eventually issued then eventually the matter may wind up in a Circuit Court of Appeals. INA [ U.S.C. 1] governs that review process. 1 U.S.C. 0. Scope of review 1 To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall- 0 (1) compel agency action unlawfully withheld or unreasonably delayed; and () hold unlawful and set aside agency action, findings, and conclusions found to be- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections and of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. ( Pub. L., Sept.,, 0 Stat..) The last thing that USCIS or AAO want is to be overruled as arbitrary, capricious, for abusing discretion, or otherwise not acting in accordance with law. Contact: joseph.whalen@gmail.com () 0- or () -0 Page

15 ABOUT THE AUTHOR I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB- Consultant, EB- Advocate, Mentor, Trainer and Advisor Ontario Street No. Buffalo, NY Phone: () 0- (cell) or () -0 (home, land-line) joseph.whalen@gmail.com web or DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-finra or SEC registered broker or adviser. Any information or consultation that seems like incidental investment advice is intended merely as educational, coaching, and mentoring. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS EB- Program, especially that portion dealing with Regional Centers. This writer wrote the Unofficial Instructions on how to apply for Regional Center Designation which later formed the basis for the I - Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 0 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB- Law Books; co-editor in the most recent. NAICS Code: Professional and Management Development Training 1 NAICS Definition: Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods. That s My Two-Cents, For Now! See: U.S.C. 0b. (a)() or go to: %edition:prelim)%or%(granuleid:usc-prelim- title-section0b- )&f=treesort&edition=prelim&num=0&jumpto=true Contact: joseph.whalen@gmail.com () 0- or () -0 Page