AAO decisions

October 7, 2009

USCIS Issues Information Collection on Form I-290B

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-290B, Notice of Appeal or Motion until November 30, 2009.

During this period, USCIS will be evaluating whether to revise Form I-290B.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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October 2, 2009

Updated Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) Processing Times were released on October 1, 2009 with processing dates as of October 1, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

April 13, 2009

Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) released its time report on April 1, 2009 with updated processing times for all types of cases accepted by its Office.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your case.

Administrative Appeals Office

March 27, 2009

Appeal of an Alien of Extraordinary Ability is rejected by Administrative Appeals Office

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

March 24, 2009

Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) released its time report on March 18, 2009 with updated processing times for all types of cases accepted by its Office.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your case.

Administrative Appeals Office

March 4, 2009

AAO approved EB-2 petition – Foreign degree found equivalent to U.S. “M.D.”

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the immigrant petition.

The Petitioner provides health care services. The Petitioner sought to employ the beneficiary permanently in the position of Family Practice Physician. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States (U.S.) doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from Islamia University Bahawalpur in Pakistan. Additionally the beneficiary possesses a Mississippi State Board of Licensure valid until June 30, 2009. Upon review of the petition, the director determined that the beneficiary did not qualify for classification as a member of the professions holding an advanced degree or satisfy the minimum level of education stated on Form ETA 9089. Specifically, the director determined that the beneficiary did not possess a U.S. “Medical degree” or foreign educational equivalent. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations.

January 16, 2009

AAO approved EB-2 petition – Foreign degree found equivalent to U.S. “M.D.”

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the employment based immigrant petition.

The Petitioner is a hospital. The Petitioner sought to employ the beneficiary permanently in the position of Interventional Radiologist. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from the University of Poona in India. Upon review of the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on Form ETA 9089. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations. On appeal, counsel for the employer submitted a cover letter and two new evaluations of the alien beneficiary’s credentials.