2016 In Review - Adopted Decisions

Introduction

Adopted DecisionsIn 2016, the United States Citizenship and Immigration Services (USCIS) designated four decisions of the Administrative Appeals Office (AAO) as “adopted decisions.” An adopted decision constitutes binding policy on the USCIS and all of its employees. When the USCIS “adopts” an AAO precedent decision, it gives the decision a unique citation format and publishes a Policy Memorandum announcing the decision. It is important to note that an adopted decision is not the same as a precedent decision rendered by the Board of Immigration Appeals (BIA), the Attorney General (AG), or the AAO. Adopted decisions are only binding on the USCIS.

We posted full articles on each of the AAO's four adopted decisions in 2016. In this article, we will review each of these decisions and provide brief summaries along with links to the corresponding articles.

We also posted articles on the 28 precedent decisions issued in 2016. You may find the first part [see article] and the second part [see article] in our section on U.S. Immigration Appeals [see category]. It is worth noting that the second part of our review of the 2016 precedent decisions includes the AAO's lone precedent decision of 2016, the Matter of Dhanasar, 26 I&N Dec. 26 I&N Dec. 884 (AAO 2016) [see article].

Please see our full article to learn more about what an AAO adopted decision is and how it is distinct from a precedent decision [see article].

List of Adopted Decisions (in order of adoption)

1. Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016)

In the Matter of H-V-P-, the AAO held that medical specialists who agree to practice in an area designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals may be eligible for a physician national interest waiver in an employment-based second preference (EB2) immigrant visa petition.

The Matter of H-V-P- reflects an important change in policy that makes clear that medical specialists can qualify for physician national interest waivers. The USCIS's previous reading of the provision had the effect of limiting physician national interest waivers for medical professionals to primary care physicians.

Please read our full article to learn more [see article].

2. Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016)

The Matter of Z-A-, Inc. dealt with a subset of L1A petitions. In this decision, the AAO held that an L1A function manager must primarily manage an essential function, although he or she may also use business expertise to perform some operational or administrative tasks. The decision addressed how the USCIS should determine whether such an L1A beneficiary's job duties would be “primarily managerial in nature,” including when staffing levels and the size of the petitioning organization should be considered.

The Matter of Z-A-, Inc. will be an instructive decision to both adjudicators and L1A petitioners going forward. The decision is most significant in situations where the L1A petitioner is a small company, and the petition beneficiary may perform some operational or administrative tasks that are not themselves managerial in nature.

Please see our full article to learn more [see article].

3. Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016)

In the Matter of L-S-M-, the AAO held that the exception to the civil penalties for failure to comply with an order of voluntary departure found in section 240B(d)(2) of the Immigration and Nationality Act does not extend to U1 nonimmigrant victims of qualifying criminal activity (qualifying for U1 nonimmigrant purposes). This exception is available for certain victims of domestic violence or related abuse. The AAO also held that the civil penalties in section 240B(d)(1) of the INA apply only to aliens who voluntarily comply with an order of voluntary departure.

This decision clarifies that section 240B(d)(2) does not extend to U nonimmigrants, but also makes clear that the civil penalties for failure to comply with an order of voluntary departure only attach if the failure itself was voluntary.

See our full article to learn more [see article].

4. Matter of R-C-C-S-D- , Adopted Decision 2016-04 (AAO Oct. 24, 2016)

In the Matter of R-C-C-S-D-, the AAO held that the Department of Homeland Security (DHS) may designate a language immersion school as a Q1 international cultural exchange program so long as the language immersion school meets the three regulatory requirements for designation as a Q1 international exchange program.

In the Matter of R-C-C-S-D-, the AAO makes clear that language immersion programs can qualify as Q1 international cultural exchange programs so long as they include a cultural component and meet the other Q1 regulatory requirements.

See our full article on this decision to learn more [see article].

Conclusion

The four adopted decisions from 2016 will have a lasting effect going forward. The Matter of Z-A- should especially touch on a large number of cases given the prevalence of the L1 intracompany transferee category. The Matter of H-V-P- and the Matter of R-C-C-S-D- represent important policy changes and clarifications for EB2 medical specialists and the Q1 cultural exchange program respectively.