To Appeal or Not Appeal: That's the Question

When faced with an unfavorable decision on their immigration petitions, many applicants ask the same question - Should I appeal or not? 

This is a complex question that must be analyzed based on many factors including the type of application, the applicant's personal situation (e.g., immigration status, finances), the reasons for the denial, availability of alternative solutions, etc.  

The primary concern of most clients is the chance of success.  It is a fair question.  After all, what is the point of appealing if it does not change the outcome of the case. The table below (courtesy of AAO and AILA) provides some insights to the "chance" question.  For example, take H-1B (I-129) petitions as an example, for the past four years, the dismissal rate has been 94% or above.  The best year was FY14, in which 509 cases were dismissed and 28 cases (or about 5%) were either sustained or remanded (both are positive results).   So if one only considers the mathematical probability of success, it does not make sense to appeal an H-1B denial.  

However, what clients do not understand is that even if 90% of the appeals are sustained, it wouldn't help their cases if they belong to the other 10%, and visa versa.  Each case is indeed different.  The most important factor in deciding whether to appeal or not is the merits of the case.  Generally speaking, legal issues are better candidates for appeal than factual issues.  For example, if the denial is based on a finding that separate LCAs are required for each client location of a traveling engineering, this presents a legal issue involving an interpretation of the regulation.   Filing an appeal may make sense if you are certain you are correct on the law.  On the other hand, if the denial is premised on a lack of proof of a valid employer-employee relationship based on the documents submitted, the dispute is factual in nature and it would be difficult to win on appeal.

As mentioned above, there are other considerations too when deciding whether or not to file an appeal.  For instance, if the applicant needs a decision as soon as possible because her current immigration status is expiring soon, filing a new petition using premium processing would be a better option than an appeal. Although the AAO's processing time has improved tremendously over the years, it is still taking about six months to process an appeal.  On the other hand, if the denied H-1B petition is a CAP case, filing a motion or an appeal will be the only option to save the visa number.  

Conclusion:  In the face of an adverse decision, deciding whether or not to file an appeal can be a complex decision depending on many factors.   Such a decision should be carefully made with the assistance of an experienced immigration lawyer.  

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.

Purchase price of U.S. company is not a consideration for L-1 visa petition

Buying a U.S. subsidiary with substantial revenues for about $51 is not a reason for denying an L-1 intercompany transferee visa petition, according to a recent decision by the Administrative Appeals Office (AAO) of the USCIS.

A U.S. company may transfer a foreign business executive or high-level manager to work in the U.S. from a foreign affiliate pursuant to section 10l(a)(15)(L) of the Immigration and Nationality Act.  In this particular case, the petitioner is a California limited liability company engaged in the distribution of prepaid calling cards to the Latin American market throughout the United States. It filed an L-1 visa petition as a majority-owned subsidiary of a Mexican company on behalf of a foreign national for the position of a general manager. 

The petition was denied by the director of the California Service Center (CSC) after concluding that there did not exist a legally valid parent-subsidiary relationship between the foreign company and the U.S. entity.  Specifically, the CSC director challenged the sale by arguing that the Mexican company did not in fact pay for the U.S. entity because of the purchase price is too low in light of the revenues of the company.  The Mexican parent here became the majority owner of the California company by acquiring 51 member units in the U.S. entity by paying $1 per unit.  After the acquisition, the parent company owned 51% interest of the U.S. entity.  

In denying the L-1 visa petition, the director focused on the unusually low purchase price and lack of actual cash transfer for a company with substantial revenues. The petitioner filed an appeal, arguing that the USCIS is not in the best position to apply its business judgment for that of the owners of the parties in the transaction.  The petitioner also argued that the low purchase price is justified by the existence of considerable debt and expenses in its books.  Specifically the U.S. company had net liabilities of over $250,000 as of September 2010. The petitioner explained that the Mexican company was interested in acquiring the California company due to its existing calling card distribution network in the U.S.  Additionally, as part of the deal, the Mexican parent entered a conditional Contribution Agreement to provide $200,000 to the California company to satisfy its creditors.

The AAO accepted the explanation of the petitioner.  After reviewing the regulatory requirements of the L-1 visa, the AAO concluded that the petitioner met its burden of proof by providing sufficient evidence to establish eligibility. Specifically, the AAO concluded that a "parent and subsidiary" relationship did exist between the foreign company and the U.S. entity after the former acquired a 51% majority interest in the later.  The AAO also found explanation of the petitioner reasonable regarding the low purchase price and the financial position of the U.S. company.

Although the decision did not change any substantive aspect of the law regarding the L-1 petition, it is still an important decision.  It provides further guidance to USCIS adjudicators as to what issues they should focus on when reviewing immigration petitions.  The decision also confirms the notion that the parties in a business transaction are free to structure a deal based on financial and business considerations without having to conform to certain expectations of government agencies.  In a capitalistic society, such freedom is particularly important as the parties in a business transaction are in the best position to make their decisions.