Immigration precedents

Morales-Santana, facing removal after criminal convictions, claimed U.S. citizenship at birth through his U.S.-citizen father, who left the United States 20 days short of his 19th birthday and thus did not satisfy the then-applicable 10-year physical-presence requirement (at least five years after age 14) of 8 U.S.C. §1401(a)(7), while an unwed U.S.-citizen mother needed only one continuous year of presence under §1409(c). The Supreme Court held that the gender-based differential violates the equal protection principle implicit in the Fifth Amendment, but declined to extend the one-year exception to fathers and instead held that, pending congressional action, §1401(a)(7)'s longer requirement applies prospectively to children born to unwed U.S.-citizen mothers.

The beneficiary earned a master's degree in 2010 from International Technological University, which obtained WASC candidacy (preaccreditation) status only in 2011, and the California Service Center denied the H-1B master's cap exemption on that basis. The AAO held that to qualify for the H-1B numerical cap exemption based on a master's or higher degree, the conferring institution must have qualified as a 'United States institution of higher education' under 20 U.S.C. § 1001(a) at the time the degree was earned, and that where ineligibility for the exemption is determined after the final receipt date, the petition is properly denied without consideration under the general H-1B cap; the appeal was dismissed.

The respondent, a native and citizen of China, opposed DHS's motion for administrative closure and sought recalendaring, and appealed after the Immigration Judge denied that request. The Board clarified Matter of Avetisyan, holding that the primary consideration in deciding administrative closure or recalendaring is whether the party opposing closure has provided a persuasive reason for the case to proceed on the merits, and that an Immigration Judge cannot review DHS enforcement priorities; it sustained the appeal, vacated the decision, and remanded.

A software company sought EB-2 advanced-degree classification for a beneficiary with an Indian bachelor's degree, disputing whether the five years of post-baccalaureate progressive experience should run from the provisional certificate date or the later formal diploma date. The AAO held that USCIS must conduct a case-specific analysis of whether, when the provisional certificate issued, the beneficiary had completed all substantive degree requirements and the degree was approved, and if so, the provisional certificate date governs the calculation; the appeal was sustained.

A semiconductor manufacturing company sought L-1B classification for a beneficiary to work in Oregon at a salary of 43,445 Malaysian ringgits per year (about $6.47 per hour), below both the federal minimum wage of $7.25 and Oregon's minimum wage of $8.95. The Administrative Appeals Office held that USCIS cannot approve a visa petition based on an illegal or otherwise invalid employment agreement and must ensure the beneficiary will be paid no less than the higher of the applicable state or federal minimum wage, withdrawing the Director's decision and remanding the matter.

The California Service Center denied an H-1B petition because the beneficiary had not shown he was a 'physician of national or international renown in the field of medicine' exempt from the U.S. medical licensing examination requirement. On de novo review, the AAO withdrew the denial and approved the petition, defining such a physician as a doctor of medicine or osteopathy widely acclaimed and highly honored in medicine within one or more countries, provided the achievements are comparable to those that would result in national renown in the United States.

The petitioner, a researcher and educator in aerospace engineering holding two master's degrees and a Ph.D. in engineering, sought to continue hypersonic propulsion research and teaching at a U.S. university. The Administrative Appeals Office vacated the NYSDOT framework and adopted a new three-prong test for national interest waivers—substantial merit and national importance of the proposed endeavor, the foreign national being well positioned to advance it, and a favorable balance in waiving the job offer and labor certification—and approved the petition on that basis.

The respondent, a native and citizen of Guinea who entered in 1997 as a nonimmigrant visitor, falsely stated in his 2000 asylum application that he arrived in December 1999 and claimed to be a Mauritanian slave. The Immigration Judge found that he knowingly filed a frivolous asylum application, permanently barring him under section 208(d)(6) from adjustment of status and waivers, and the Board dismissed his appeal, holding that an untimely asylum application may be frivolous where the false entry date is material to the one-year filing deadline.

A Delaware public school district sought Q-1 international cultural exchange visitor classification for four Spanish national elementary teachers at its Spanish immersion magnet school; the Vermont Service Center director approved the petition and certified the program-eligibility question to the Administrative Appeals Office. The AAO held that the program satisfied the three regulatory requirements of public access, a cultural component, and a work component tied to the cultural component, affirmed the approval, and remanded for a determination of the program's duration because the record did not establish it.

A Delaware public school district sought Q-1 international cultural exchange visitor classification for four Spanish-national elementary teachers at its Spanish dual-language immersion magnet school; the Vermont Service Center director approved and certified the program-eligibility question to the AAO. The AAO held that the program satisfied the three regulatory requirements—public access, a cultural component, and a work component tied to the cultural component—affirmed the approval, and remanded for a determination of the program's duration, which the record did not establish.

Richmond, a native and citizen of Trinidad and Tobago, falsely claimed to DHS officers during an immigration status investigation that he was a United States citizen born in Brooklyn; the Immigration Judge found him not credible and held him inadmissible under INA section 212(a)(6)(C)(ii)(I) and ineligible for adjustment of status. On remand from the Second Circuit, the BIA construed section 212(a)(6)(C)(ii)(I) to require direct or circumstantial evidence of subjective intent to obtain a purpose or benefit under the Act or other Federal or State law, plus objective proof that citizenship actually affects or matters to that purpose or benefit, and held that avoiding removal proceedings qualifies as a 'purpose' under the provision.

The California Service Center director denied an L-1A extension for a U.S. subsidiary's vice president and chief operating officer, finding the two-employee U.S. office insufficient to support a managerial position. The Administrative Appeals Office withdrew that decision and approved the petition, holding that adjudicators must consider the totality of the record and weigh all relevant factors, including evidence of the reasonable staffing needs of related entities within the qualifying organization.