XXX

XXX

XXX

XXX  DEPARTMENT OFXXXX SECURITY

XXX CITIZENSHIP AND IMMIGRATION SERVICES

ADMINISTRATIVE APPEALS OFFICE

XXX

 

In The Matter of:                 XXX   Self- Petitioner under Form I-140, Immigrant Petition for Alien Worker

File No: A# ____________   I-290B Receipt Number: _______________ I-290B Notice of Appeal Receipt Number: _________________

 

APPELLANT’S BRIEF

 

 

 

TABLE OF CONTENTS

 

FACTUAL BACKGROUND.. 2

ARGUMENTS. 3

1. APPELLANT IS ENTITLED TO A NATIONAL INTEREST WAIVER.. 3
2. Appellant’s Proposed endeavor is of national importance. 3
3. Appellant is well-positioned to advance the proposed endeavor 8

iii.    On balance, waiving the job offer requirement would benefit the United States. 9

1. THE USCIS IS UNJUSTLY USING A MORE STRINGENT BURDEN OF PROOF ON APPELLANT. 11

CONCLUSION.. 13

 

 

TABLE OF AUTHORITIES

Cases

XXX…………………………………………………………………………………… 12

Other Authorities

1. XXX……………… 12

 

 

 

 

 

 

 

 

 

 

 

FACTUAL BACKGROUND

1. This Appeal relates to the Appellant’s Immigrant Petition for Alien Worker (Form I-140) filed by Appellant on November XXX at the Texas Service Center. The Appellant sought to be classified as an alien holding an advanced degree or an alien of exceptional ability with a waiver in the national interest in accordance with Section 203(b)(2)(A) of the Immigration and Nationality Act (INA). Together with the Petition, Appellant attached the following documents:
   • Cover Letter mentioning proposed endeavor and relevant arguments and articles about Lean / Continuous Improvement
   • Letter of expert opinion, bio, & resume by professor Dr. Jose Ventura
   • Copy of MS Industrial Engineering & academic transcript
   • Copy of BS Electrical Engineering & academic transcript
   • Copy of Lean Bronze certification details, other certifications & SME membership
   • His Resume
   • Copy of essential worker designation at XXX  LLC
   • Various articles on Lean and government speeches and executive orders
   • Employment offers as proof of progressive increase in salary from $59K to $96K
   • Last few paystubs as proof of employment at $96K/year

 

2. On February 28, 2023, the USCIS requested for additional evidence (“RFE”) to process Appellant’s Form. The USCIS found that the petition had satisfied the classification requirement as a person with an advanced degree. However, the USCIS held that Appellant had not met the threshold for a national interest waiver.
3. Appellant therefore filed a response to the RFE on May 30, 2023. He submitted the following additional documents:
   • Petition plan with a more focused endeavor and arguments in Appellant’s favor
   • Letter of recommendation by one of Appellant’s former managers
   • Proposed Endeavor statement
   • Business Plan
   • Proof of LLC ownership and proof of funding
   • Various articles, research, government actions etc. related to Appellant’s endeavor
   • A detailed legal argument in Appellant’s favor as it relates to the Matter of XXX
   • Annual career and economic outlook reports for the Lehigh Valley PA, related to Appellant’s endeavor
   • Updated Resume

 

4. On June XXX, the USCIS denied Appellant’s Petition.
5. Appellant therefore challenges the decision of the USCIS.

ARGUMENTS

       I.            APPELLANT IS ENTITLED TO A NATIONAL INTEREST WAIVER

                    i.            Appellant’s Proposed endeavor is of national importance

6. To assert why Appellant’s endeavor is of national importance, Appellant points out notable averments from the USCIS’s denial, which Appellant seeks to challenge in this Appeal.
7. First, the USCIS states that “[t]he petitioner emphasizes the importance of the field and occupation in general, rather than the importance of his own specific proposed endeavor.” Contrary to the USCIS’s assertions, Appellant specifically demonstrated the importance of his endeavor to the United States. In his response to the RFE, Appellant’s counsel stated thus: “Mr. Rasheed’s work can also help the U.S. increase exports and subsequently improve national security. With his expertise, he will provide smart automation services that can streamline production. These services would include the use of robotics, automated guided vehicles, and conveyor systems as methods to improve workflow and accelerate export production.” (Emphasis added).
8. Further, Appellant’s response to the RFE included a proposed Business Plan, which indicated Appellant’s intention to establish a consulting business that provides SLMHS services. The foregoing clearly depicts Appellant’s proposed endeavor and the national importance thereof. However, the USCIS interestingly refused to acknowledge Appellant’s proposed Business Plan on the ground that Appellant’s response to the RFE introduced a new endeavor, different and unrelated to the one initially asserted in the Self-Petition. Nothing can be further from the truth. Appellant’s proposed endeavor is to deploy his expertise in industrial engineering to improve the processes and operations at Appellant’s current and future venues of employment.
9. Appellant arrived in the US on an H-4 visa in July XXX. He has maintained DACA status over the last 10 years. He self-petitioned for the EB2-NIW upon learning about it in November XXX. He has a BS Electrical Engineering and MS Industrial Engineering from Wichita State University in Wichita KS. He is Lean Bronze certified, which is a good credential for people specializing in Lean and Continuous Improvement within the wider field of Industrial Engineering. He has over 5 years of progressive work experience in the field of Industrial Engineering, with a specialization in Lean / continuous improvement.
10. It follows, in the initial documents filed, Appellant’s proposed endeavor stated: “

“Lean, is a sub specialization of Industrial Engineering. Lean is usually defined as a set of principles and tools that helps an organization eliminate process activities that do not add value and helps create “flow” in a process. A Lean process is defined as one that uses only the absolute minimum number of resources to add value to a particular service or product. Lean manufacturing can also be viewed as a management philosophy that focuses on reducing the eight types of wastes from manufacturing or service processes. These wastes are usually represented by the acronym DOWNTIME (Defects, Overproduction, Waiting, Non-utilized talent of employees, Transportation, Inventory, Motion, Extra/excess processing). The elimination of waste results in improved quality, reduced production time, and reduced operational costs. Some popular Lean tools are: Kaizen (continuous process improvement), Pull-production based on Kanban, and Poke-yoke (mistake proofing). As a management philosophy, Lean focuses on creating a better workplace through the Toyota principle of “respect for humanity…

 

The determination of “value” lies at the heart of Lean. Value is defined as a form, feature or function for which a customer is willing to pay. The processes that do not add value are deemed waste. The Lean framework is used as a tool to focus resources and energies on producing the value-added features while identifying and eliminating non-value-added activities. Processes in Lean are thought of as value streams. Lead-time reduction and the flow of the value streams are the major focus areas in Lean. VSM (Value Stream Mapping) helps Lean teams understand the flow of material and information, as the organization delivers the product or service to the customer.”

 

11. Appellant also attached documents that supported his endeavor. However, the USCIS held that none of the documents provided any specific details about the self-petitioner’s specific proposed endeavor.
12. Appellant therefore sought to be more specific in his response to the RFE. It is in this regard that he specified exactly the work and/or activities he proposes to do in furtherance of the endeavor. He submitted a narrower version of his endeavor, along with a business plan, as part of his RFE response Accordingly, Appellant’s response to the RFE specified the proposed endeavor as follows: “Upon receiving the EB-2 visa, I plan to establish my own consulting business, specializing in helping companies implement Smart Lean Material Handling Systems (SLMHS) in their organizations. The initial startup will focus on software and technology integration, with a gradual addition of services such as automation, warehouse design, and preventive maintenance.”
13. Notably, Appellant proposed to start a consultancy specializing in helping manufacturing and supply chain enterprises implement Smart Lean Material Handling Systems in their organizations. This endeavor is intimately tied to improving the processes and operations of manufacturing and supply chain enterprises.
14. The Business Plan specifically provides a roadmap through which Appellant intends to fulfill his endeavor. The Business Plan states in that regard as follows:

Under the leadership of Mr. XXXt LLC is dedicated to revolutionizing material-handling processes through the provision of innovative Smart Lean Material Handling Systems (SLMHS). Our comprehensive range of services encompasses software and technology integration, process optimization, automation, warehouse design, and preventive maintenance. By combining cutting-edge technology with lean principles, we help manufacturers optimize efficiency, reduce waste, and achieve operational excellence. Our modular and scalable solutions cater to the diverse needs of manufacturers, empowering them to streamline their operations, enhance productivity, and thrive in an increasingly competitive landscape. With a customer-centric approach and a commitment to delivering tailored solutions, XXX LLC aims to be the catalyst for success in the ever-evolving manufacturing and supply-chain industry.

 

15. It follows; the Business Plan did not introduce a new endeavor, but was an extension of Appellant’s endeavor (as depicted in the documents filed in the self-petition), in response to the RFE.
16. It is Appellant’s assertion that the Business Plan does not provide a new set of facts that materially changes the endeavor identified in the self-petition. In sum, at the heart of both his original and revised endeavors is the core objective of driving excellence and efficiency in manufacturing and supply chain industries through Lean methodologies and continuous improvement techniques. While the manifestation of his goal shifted from improving processes at individual venues of employment to starting a consultancy, both visions emanate from his unwavering commitment to revolutionize the way industries operate in America. His initial proposition was rooted in a localized approach. However, in light of the RFE, he took a holistic stance to address a broader range of industries and thereby make a more significant impact. This pivot to a consultancy focusing on the implementation of smart-lean-material-handling systems was to showcase a tangible roadmap, not to change his story.
17. Besides, business plans are important in satisfying the national importance limb of a NIW application. It is trite law that prospective job creation must be demonstrated through submission of a comprehensive business plan. 8 C.F.R. § 204.6(j)(4)(i). The AAO has previously held in the precedent decision Matter of Ho 22 I&N Dec. 206,213 (Assoc. Comm’r 1998)that, to be “comprehensive,” a business plan “must be sufficiently detailed to permit [USCIS] to draw reasonable inferences about the job-creation potential.”. The decision concludes: “Most importantly, the business plan must be credible.” Id.
18. Appellant’s Business Proposal is sufficiently detailed to meet the credibility threshold. It details inter alia, the personnel plan with their job roles, scope of services, market analysis that identifies the gap in the market, a SWOT analysis, a five-year marketing and sales plan, and a projected financial information.
19. Further, support his averment why the endeavor is of national interest, Appellant first states that the endeavor will reinforce domestic manufacturing. Under the Biden administration, there has been a pronounced emphasis on bolstering American manufacturing and reshoring critical supply chains. Appellant’s consultancy aligns directly with this vision, as he aims to streamline and optimize manufacturing and supply-chain processes, making them more competitive on the global stage.
20. Next, the endeavor will promote economic resilience. By enhancing the efficiency of supply-chain enterprises, Appellant’s endeavor can play a pivotal role in safeguarding the nation from future supply-chain disruptions. This resilience is critical for national security, economic stability, and maintaining the U.S’s position as a global economic powerhouse.
21. Also, already stated above, the endeavor will promote job Creation & Skill Upgradation. Efficient operations often lead to expanded production capabilities, potentially leading to job creation. Moreover, introducing modern lean methodologies can drive upskilling initiatives within the workforce, creating a more competent labor market.
22. Further, the endeavor will promote sustainability. Efficient supply chains and manufacturing processes have a direct correlation with reduced waste, lower energy consumption, and a decrease in carbon footprint. As the Biden administration prioritizes sustainability, the endeavor supports the move towards a greener future.
23. Lastly, the endeavor will pose a global competitive edge. As international competition intensifies, it is imperative for U.S. industries to continually innovate and optimize. With Appellant’s background in industrial engineering and hands-on experience in implementing Lean methodologies, Appellant is poised to propel American industries to the forefront of global excellence.
24. In light of the forgoing, Appellant asserts that he provided sufficient facts and figures related to his endeavor, to highlight the national importance of Appellant’s endeavor.

                  ii.            Appellant is well-positioned to advance the proposed endeavor

25. In its denial notice, the USCIS states that it cannot conclude that the petitioner is well positioned to advance the proposed endeavor.
26. This second prong focuses attention on the applicant’s background and accomplishments. In order to grant the green card, the government must feel comfortable that a petitioner will actually be able to accomplish the job that the applicant proposes.
27. Evidence which best establishes that the petitioner is well positioned to advance the proposed endeavor will document the petitioner’s qualifications (skills, experience and track record), support (financial and otherwise) and commitment (plans and progress) to drive the endeavor forward, and will support projections of future work in the proposed endeavor. Matter of XXX
28. The documents filed both in support of the self-petition and in response to the RFE clearly describe Appellant’s qualifications. For instance, Appellant attached his updated resume, which shows his skills, competence, and experience.
29. Next, Appellant provided evidence of support for his endeavor. For instance, he specified how he earned a $16,000 increase to $75,000 per annum through his new role as a Continuous Improvement Engineer with XXX  LLC. Besides, his most recent increase to a salary of $92,000, and employment as a Senior Continuous Improvement Engineer with Ryder System Inc., show how valuable Appellant’s expertise is and his ability to apply it to develop the manufacturing process.
30. Lastly, Appellant has discussed his commitment plans and projections with respect to his endeavor. For instance, he has already taken the first step by creating XXX LLC, to revolutionize material-handling processes by providing innovative solutions for implementing Smart Lean Material Handling Systems (SLMHS). He has also provided a comprehensive 5-year detailed plan.
31. From the foregoing, it is evident that the USCIS is in error because it disregards the evidence submitted by Appellant, which show how Appellant will accomplish his endeavor.

                iii.            On balance, waiving the job offer requirement would benefit the United States.

32. This third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
33. In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. XXX. In its denial notice, the USCIS held that since Appellant did not establish that the specific proposed endeavor has national importance and he is well positioned to advance the proposed endeavor, Appellant does not meet the third prong in XXX
34. Having demonstrated above why his endeavor is of national importance and that he is well positioned to advance the endeavor, Appellant contends that this third prong needs to be addressed.
35. Appellant been in DACA status for over 10 years and has maintained DACA status. Therefore, Appellant falls in the category of recipients who are covered under USCIS final rule about DACA. Unlike a typical I-140 applicant who comes from another country, Appellant is already part of the US workforce.
36. Adriana Belmonte’s article in yahoo finance (XXX) presents a detailed study of why DACA recipients do not affect jobs of other American workers.
37. Besides, in addition to this I-140 petition, an I-130 filed by Appellant’s US citizen father is pending for want of a Visa number. IOE 0913611759 dated XXX.. However, at the current pace it may take close to ten years for the priority date for Appellant’s I-130 application to become current. When USCIS transferred 30,000 visas from family-based categories to employment-based categories the movement of priority date for my I-130 became extremely slow. Therefore, as soon as Appellant became eligible, he filed an I-140 petition, under the EB2-NIW program, for himself (SRC2390024326). Since priority date was current at the time of filing this I-140 petition, it was filed concurrently with I-765, I-485 and Supplement A to I-485.
38. Previously, Appellant was listed as a child on his father’s immigration petition, LIN-08-088-50510 approved on XXX. However, he aged out of this petition. As part of supporting documents for forms I-485 and supplement A to form I-485, Appellant had submitted proof of an inordinate delay in his father’s labor certification. The delay caused Appellant to age out from his petition. Therefore, Appellant requests some consideration for falling behind due to circumstances beyond his control. It is not known whether all the forms were seen together by the adjudicating officer, or if those were sent to different service centers.
39. Appellant requests that the supporting documents he submitted with I-485 and Supplement A to I-485, be considered for merits of this case. He is eligible for 245i adjustment of status as a derivative beneficiary. This provision requires either an I-140 or an I-130 to connect with I-485. He has this I-140 under review. As stated above he is a beneficiary of a pending I-130 as well.
40. Accordingly, Appellant has sufficient reasons why the job offer requirement should be waived.

    II.             THE USCIS IS UNJUSTLY USING A MORE STRINGENT BURDEN OF PROOF ON APPELLANT

42. It is the Petitioner’s burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of XXX). And in the event of inconsistencies, the inconsistencies must be solved with independent, objective evidence pointing to where the truth lies. Matter of Ho, XXX. When something is to be established by a preponderance of evidence it is sufficient that the proof only establish that it is probably true. In the Matter of E—- M, 20 I&N Dec. 77 (B.I.A. 1989); see Cleary, McCormick’s Handbook of the Law of Evidence § 339 (2d ed. 1972); see also 8 C.F.R. § 245a.2(d)(6) (1988)(The evidence will be judged by its probative value and credibility).
43. Further, preponderance of evidence is not evidence that must establish beyond a doubt that the applicant is eligible. In the Matter of E—- M, 20 I&N Dec. 77 (B.I.A. 1989). It is not the clear, unequivocal, and convincing evidence applicable in deportation proceedings. XXX.
44. As characterized by one court, “in American law a preponderance of the evidence is rock bottom at the fact finding level of civil litigation.” XXX.
45. It is notable from the USCI’s decision that the agency used a higher burden of proof than was required. Appellant avers on the contrary that he has established, by a preponderance of the evidence, his eligibility for the green card.
46. Appellant’s intent throughout the self- petition, and the RFE response, has been to qualify under the “Advanced Degree” aspect of the EB-2 NIW framework. He has tried to make a strong argument for it. The documents he has submitted so far offer conclusive evidence of his eligibility for the EB-2 classification.
47. Appellant contends that the more stringent requirements of the EB-1 framework might have been applied to Appellant’s EB-2 NIW petition. Appellant invites this agency to apply the correct burden of proof in probing the documents submitted by Appellant in support of his petition and in response to the RFE. The preponderance of the evidence standard requires examination of “each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.” Matter of XXX.
48. Appellant assures this agency that it will find Appellant’s assertions to be, at least, probably true.

CONCLUSION

49. While Appellant understands the concerns raised by the USCIS, his intentions and goals have remained consistent and are deeply aligned with the national interest. Through his efforts, he aims to contribute to a stronger, more resilient, and sustainable American industrial ecosystem. It is therefore prudent and just for the AAO to reconsider the USCIS’s decision in light of the averments set forth herein, reaffirming Appellant’s dedication to the advancement of the U.S. manufacturing and supply-chain sectors
50. Accordingly, the Appellant prays that this Agency:
51. Approves Appellant’s current I-140 petition based on the totality of the facts stated above, and the evidence submitted to the USCIS;
52. Alternately, allocates a visa number from the employment-based categories for Appellant’s family-based I-130 petition, because that petition has slowed down due to the transfer of visas from family-based to employment-based categories;

• Links Appellant’s Form I-485 (SRC2390024325) submitted with this I-140 petition to I-130 (IOE 0913611759); and

1. Grant any other remedy it deems fit and just.

 

Respectfully Submitted,

 

Dated: _____________

_______________________

XXX

Appellant, pro se

 

 

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