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2010 - 2009

  • AAO Denies H-1B Cap Exemption for Teaching Hospital(6337 KB - 12/14/2010)
    In a non-precedent decision, the AAO found that a hospital that provides clinical training for nurses enrolled at an institution of higher education, but is a corporation independent of the institution of higher education, is not eligible for H-1B cap exemption. AILA Doc. No. 10121432.
    AILA Doc. No. 10121432.
  • AAO Grants I-601 Unlawful Presence Waiver(2011 KB - 12/13/2010)
    In an unpublished decision, the AAO sustained the appeal of a §212(a)(9)(B)(v) waiver, citing evidence of health conditions of the applicant's spouse, financial difficulties, and difficulties as a single parent of eight children. Courtesy of Robert Carpenter. AILA Doc. No. 10121362.
    AILA Doc. No. 10121362.
  • AAO Discusses 212(i) Waiver Factors(379 KB - 12/13/2010)
    The AAO sustained the appeal, granting the applicant’s waiver of inadmissibility under INA §212(i). The unpublished decision includes a detailed discussion of "extreme hardship" and outlines the positive and negative case factors. Courtesy of Robert Carpenter. AILA Doc. No. 10121361.
    AILA Doc. No. 10121361.
  • AAO Dismisses EB-1-1 I-140 Appeal Finding Material Misrepresentation(2090 KB - 12/10/2010)
    In a non-binding EB-1-1 decision, the AAO dismissed the appeal and discussed material misrepresentation, evidentiary categories, and "final merits determinations." (AAO 2010) AILA Doc. No. 10121033.
    AILA Doc. No. 10121033.
  • AAO Grants EB-3 I-140 Petition for Food Technologist(650 KB - 10/26/2010)
    In an unpublished case, the AAO found that a foreign degree in agriculture and forestry with specialization in dairy technology correlated to the position’s requirement of a bachelor’s degree or foreign equivalent in food science. Courtesy of Adam Rosen. AILA Doc. No. 10102666.
    AILA Doc. No. 10102666.
  • AAO Precedent Decision on AC21 I-140 Portability(229 KB - 10/20/2010)
    AAO precedent decision on INA §204(j) portability, finding that where the I-140 has remained unadjudicated for 180 days, the petition must have been “valid” to begin with to remain valid with respect to the new job. Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010). AILA Doc. No. 10102031.
    AILA Doc. No. 10102031.
  • AAO Precedent Decision on Burden of Proof Immigration Proceedings(228 KB - 10/20/2010)
    AAO precedent decision finding that “preponderance of the evidence” is the burden of proof in administrative immigration proceedings, except where a different standard is specified by law. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). AILA Doc. No. 10102030.
    AILA Doc. No. 10102030.
  • AAO Applies Debarment to Petition Filed Prior to Debarment Period(5103 KB - 10/18/2010)
    In an unpublished decision, AAO denies EB-3 petition filed prior to the debarment period by an employer debarred for H-1B LCA violations, because the decision was rendered during the period of debarment. Ability to pay offered wage issues also are addressed. AILA Doc. No. 10101864.
    AILA Doc. No. 10101864.
  • AAO Grants I-601 Unlawful Presence Waiver(408 KB - 9/29/2010)
    In an unpublished decision, the AAO granted a §212(a)(9)(B)(v) waiver, finding the U.S. citizen spouse would otherwise suffer extreme hardship. The AAO considered evidence of emotional and financial hardship, and country conditions in Venezuela. Courtesy of Tania Alvarez. AILA Doc. No. 10092972.
    AILA Doc. No. 10092972.
  • AAO on H-1B Cap Exempt Status on Basis of University Affiliations(204 KB - 9/22/2010)
    In a non-precedent 8/9/10 decision, AAO reversed CSC denial of H-1B visa for a nonprofit religious organization, finding that petitioner met H-1B cap-exempt status requirements as a nonprofit entity related to an institution of higher education. Courtesy of Scott D. Pollock. AILA Doc. No. 10092239.
    AILA Doc. No. 10092239.
  • AAO Affirms Denial of Petition by EB-5 Alien Entrepreneur(1613 KB - 9/21/2010)
    In a 9/21/10 non-precedent decision, AAO affirmed denial of a Form I-526 petition for lawful permanent residence where the petition was supported by agreements that had been substantially amended from those submitted with the original regional center proposal. AILA Doc. No. 10092180.
    AILA Doc. No. 10092180.
  • AAO Holds Admission of Drug Use to Psychiatrist Insufficient for Inadmissibility Finding(422 KB - 7/26/2010)
    In a 6/17/09 decision, AAO dismissed waiver application as moot, finding applicant’s admission of prior drug use to a psychiatrist insufficient for inadmissibility finding. AAO addresses Section 428 of the Homeland Security Act of 2002. AILA Doc. No. 10072664.
    AILA Doc. No. 10072664.
  • AAO Finds Coauthored Scientific Articles Evidence for EB-1A I-140 Petition(4308 KB - 7/21/2010)
    On 1/4/10, AAO sustained appeal and approved an EB-1A I-140 petition, finding no basis to conclude that USCIS should not assign weight to collaborative scientific research and that the TSC Director failed to consider petitioner’s coauthored articles. Courtesy of Z. Zac Liu. AILA Doc. No. 10072173.
    AILA Doc. No. 10072173.
  • AAO Affirms Denial of I-526 Investor Petition(555 KB - 6/18/2010)
    AAO affirmed denial, finding that petitioner failed to execute plan presented in support of Form 1-526 petition by switching to a project not reviewed by USCIS and financing different expenses with the original project than those projected in the original business plan. AILA Doc. No. 10061864.
    AILA Doc. No. 10061864.
  • AAO Dismisses I-140 Outstanding Researcher Appeal(5657 KB - 6/10/2010)
    The Administrative Appeals Office (AAO) found that a state agency is not a qualifying petitioner for the EB-1-2 researcher category and interpreted Kazarian to find that the beneficiary had not established outstanding international recognition. Courtesy of Jeff Devore.
    AILA Doc. No. 10061065.
  • AAO Sustains Appeal on Issue of Professional Position(2475 KB - 4/28/2010)
    The AAO sustains Petitioner's appeal and found that a market research analyst is a professional position. Courtesy of William Sim . AILA Doc. 10042830.
    AILA Doc. No. 10042830.
  • AAO Affirms Denial of Adjustment Finding Applicant Did Not Have Valid Labor Certification(1858 KB - 4/1/2010)
    The AAO affirmed the denial of Applicant’s AOS application, finding Applicant did not have a valid labor certification because a substituted beneficiary had used Applicant’s original LC as a basis for his AOS. Decision courtesy of Matthew R. Glinsmann. AILA Doc. No. 10040131.
    AILA Doc. No. 10040131.
  • AAO Finds Profession of “Computer Software Engineer” Does Not Require Specified Field of Study for Bachelor’s Degree(300 KB - 11/4/2009)
    AAO sustained appeal, finding that the profession of a “Computer Software Engineer” requires at least a bachelor's degree, but that a degree in a specific field is not necessary according to the OOH, and that the alien's background included substantial experience in the related field. Decision courtesy of Ronald Matten. AILA Doc. No. 09110461.
    AILA Doc. No. 09110461.
  • AAO Finds Occupation of “Market Research Analyst” Does Not Require Specified Field Study for Master’s Degree(1492 KB - 11/3/2009)
    AAO sustains appeal, finding that the occupation of a “market research analyst” does not require specification of one or more fields of study for a Master’s degree. The AAO based its conclusion on OOH and O*Net to confirm that the offered position requires at least a bachelor’s degree and in some cases a Master’s. Decision courtesy of David Sindell. AILA Doc. No.09110363.
    AILA Doc. No. 09110363.
  • AAO Finds Ability to Pay Where Beneficiary Will Replace Outsourced Services(1618 KB - 9/14/2009)
    In a non-precedent decision, AAO held that petitioner established ability to pay proffered wage where beneficiary would replace outsourced data management service. AILA Doc. No. 09091490.
    AILA Doc. No. 09091490.
  • AAO Rejects Ability to Pay Argument Due to Multiple I-140s Filed by Petitioner(2060 KB - 8/4/2009)
    In a non-precedent decision, AAO held that petitioner had not established ability to pay beneficiary where USCIS electronic records revealed that the petitioner, which claimed to employ only 180 employees, filed 1,706 immigrant and nonimmigrant petitions. AILA Doc. No. 09080490.
    AILA Doc. No. 09080490.
  • AAO Considers Evidence Outside Petitioner’s Net Income and Net Current Assets When Determining Ability to Pay(735 KB - 7/27/2009)
    AAO withdraws I-140 denial based on inability to pay. The AAO applied Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967), and held that USCIS may consider evidence relevant to the petitioner’s financial ability that falls outside of a petitioner’s net income and net current assets. Decision courtesy of Cyrus Metha. AILA Doc. No. 09072763.
    AILA Doc. No. 09072763.
  • AAO Declares I-601 Moot, Erroneous Finding that Applicant Departed U.S. Due to Notary Error(1047 KB - 7/7/2009)
    AAO withdraws decision to deny I-601 waiver application and declares it moot. Concludes that the finding that the applicant departed after being unlawfully present for a period of one year or more was the result of a notary error on the I-485. Applicant stated that she never left the U.S. Decision courtesy of Bernie Wolfsdorf. AILA Doc. No. 09070766.
    AILA Doc. No. 09070766.
  • AAO Rejects Ability to Pay Argument for Petitioner’s Failure to Prove Sonegawa Exception(6243 KB - 7/1/2009)
    In a non-precedent decision, AAO held petitioner had not established ability to pay where no unusual circumstances were shown to exist parallel to Sonegawa, which relates to petitions filed during uncharacteristically unprofitable years in a framework of profitable years. AILA Doc. No. 09070190.
    AILA Doc. No. 09070190.
  • AAO Holds Mental Health and Financial Circumstances Demonstrate Extreme Hardship to Citizen Spouse(286 KB - 5/11/2009)
    AAO grants motion to reopen. Finds extreme hardship to waiver applicant’s U.S. citizen spouse is demonstrated by spouse’s continuing mental health condition, as documented by a licensed healthcare professional, and the difficulties the spouse encountered in being a single parent. Decision courtesy of Steven Garmo and Danny Garmo. AILA Doc. No. 09051171.
    AILA Doc. No. 09051171.
  • AAO Finds Ability to Pay Based Upon Discretionary Shareholder Loan(430 KB - 5/11/2009)
    In a non-precedent decision, AAO held petitioner established ability to pay where petitioner submitted a letter from its sole shareholder confirming loan repayment was discretionary and would not have been repaid if petitioner had obligated to pay beneficiary a higher wage. AILA Doc. No. 09051190.
    AILA Doc. No. 09051190.
  • AAO Rejects Ability to Pay Argument for Failure to Prove Credit Line Will Improve Company's Financial(1182 KB - 3/16/2009)
    In a non-precedent decision, AAO held petitioner had not established ability to pay proffered wage where petitioner failed to prove that the line of credit would augment the company’s overall financial situation. AILA Doc. No. 09031690.
    AILA Doc. No. 09031690.
  • AAO Holds that Untimely Appeal Should Have Been Treated as Motion to Reopen(1299 KB - 3/13/2009)
    AAO upholds rejection of appeal and motions filed for a Chinese Opera performer seeking EB-1 classification. However, also finds that petitioner’s untimely appeal should have been treated as a motion to reopen, and that a decision should have been made on the merits of the case. Considers merits de novo. Unpublished decision courtesy of Alan Lee. AILA Doc. No. 09031369.
    AILA Doc. No. 09031369.
  • AAO Finds Extreme Hardship Would be Suffered by Father of Chinese I-601 Waiver Applicant(1114 KB - 3/13/2009)
    AAO sustains appeal, finding the applicant merits an I-601 waiver because of the extreme hardship that his father would suffer. Factors considered included minimal family ties to China, emotional and physical problems, and reliance on the applicant for support. Unpublished decision courtesy of Alan Lee. AILA Doc. No. 09031367.
    AILA Doc. No. 09031367.
  • AAO Concludes M.B.B.S is Equivalent to M.D.(1447 KB - 2/19/2009)
    In a non-precedent decision, AAO holds that a 5 year Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) is the foreign equivalent of a U.S. M.D., and that the beneficiary qualifies for EB-2 classification. Courtesy of Barry Walker. AILA Doc. No. 09021835.
    AILA Doc. No. 09021835.
  • AAO Holds 5-year Indian M.B.B.S. Degree Equivalent of U.S. M.D. Degree(622 KB - 1/13/2009)
    In a non-precedent decision, the AAO holds that a 5-year M.B.B.S. degree from India is the equivalent of a U.S. M.D. degree and discusses evidence of degree equivalency. InfoNet Doc. No. 09011320.
    AILA Doc. No. 09011320.