A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, November 19, 2013

AAO grants national interest waiver to commodity supplier

The Administrative Appeal Office (AAO) of the U.S. Citizenship and Immigration Services grants a national interest waiver to a commodity trader/supplier, in a non-precedent decision, after concluding that the applicant's immigration will benefit the U.S. to an extent that outweighs the requirement of labor certification.

At issue was an EB-2 petition filed by a commodity trade and supply business on behalf of its manager, who was also the company's founder and sole employee.  The petition requested that the requirement of labor certification be waived in the national interest of the United States.  The case was filed with the Texas Service Center, which denied the petition after issuing a Request for Evidence (RFE) and also a Notice of Intent to Deny (NOID) to the petitioner.  The petitioner filed an appeal with the AAO.

RFE for proof of national scope
The petitioner is a supplier and distributor of swimming pool plastering materials in the U.S.  The RFE issued by the TSC asked for evidence to show that the benefits of beneficiary's services were national in scope, and also for evidence that he was influential in his field.  In response, the petitioner established that it had 100 customers located in nine different States, nine America suppliers located in four different States and more than four international sources of imported materials.  The beneficiary also maintained that he had a customer base of approximately 80 family businesses and about 23 private companies, all of them relying on him for steady supply of goods, competitive prices and custom credit lines. The petitioner also provided numerous letters from business owners who confirmed that the beneficiary had helped them stay in business.

NOID:  Beneficiary stands out in the field?
Subsequently, the TSC director issued a Notice of Intent to Deny (NOID) to petitioner, finding insufficient evidence to show that the beneficiary's accomplishments distinguish him from others in the field.  The director found the letters submitted not sufficient as they were written by beneficiary's business partners or customers. The director wanted to see more independent opinion about the beneficiary's achievements in order to waive the requirement for labor certification.

The beneficiary responded to the NOID by first observing that labor certification was not realistic, given the fact that he was both the owner of the company and the only employee.  The Labor Department would not likely grant certification to self-employed individuals.  The beneficiary also noted that that USCIS has been proactively reaching out to entrepreneurs, citing the Service Entrepreneurs in Residence initiative as an example.  The beneficiary also submitted a new letter from a senior research analyst which explained that (1) The petitioner's success stems from the beneficiary's ability to identify market fluctuations in markets; (2) In commoditized product business, it is the trust and credibility of the supplier organization that differentiates it from its competitors; (3) A business entity's trust and credibility comes from its representatives; (4) Since the beneficiary is the sole representative of the petitioner, and it would be almost impossible to find any other more qualified personnel to do the beneficiary's job of projecting trust and credibility to customers.

The TSC director ultimately denied the NIW application, after having concluded that beneficiary failed to present sufficient evidence to prove that he stands out among his peers.

AAO grants NIW
The AAO reversed the denial and granted NIW to the beneficiary, noting that the beneficiary's contribution to the filed is through his "transaction of business" rather than product development.  The AAO noted that the beneficiary had helped many small businesses, individually and cumulatively, stay in business. These achievements go above and beyond customer satisfaction and leave a legacy far beyond the beneficiary's own business ventures.  Consequently, the AAO concluded that beneficiary's services outweigh the national interests of labor certification.

There are several points that are worth noting here. First, the beneficiary in this case was a business professional.  It demonstrates that NIW is not just reserved for scientists, researchers or medical professionals.  Secondly, independent experts letters are usually given more evidentiary weight than letters written by colleagues or employers.  Thirdly, small companies (such as the petitioner here) with one or two employees may also file an employment-based petition, although it would be difficult to prove the case.

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