Immigration Precedents on Requirement that Petition Must Be Approvable When Filed

 

Introduction

On October 13, 1971, the former Immigration and Naturalization Service (INS) published a consequential immigration precedent decision in the Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971). In Matter of Katigbak, the regional commissioner held that in the case of an immigrant visa petition requiring the applicant to be a “qualified member of the professions,” the applicant must meet the applicable requirements for being a “qualified member of the professions” at the time the petition is filed. That is, education obtained after the filing of the petition cannot be counted toward meeting the minimum requirement.

Subsequent to the Matter of Katigbak, several immigration precedent decisions were published that extended the principle that a petition must be approvable when filed to other types of immigrant visa petitions. In this article, we will examine the subsequent decisions following Matter of Katigbak and other relevant immigration precedents on this issue.

Line of Cases on Employment-Based Petitions

Matter of Katigbak (Applicant must meet education requirements at time third-preference petition is filed [former EB3 rules])

On October 13, 1971, the regional commissioner decision in Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971) [PDF version], was published.

The applicant filed an immigrant visa petition under former section 203(a)(3) of the Immigration and Nationality Act (INA) as a “member of the professions.” She filed the petition in order to seek work as an accountant. Id. at 46.

The question before the regional commissioner was whether “the applicant was academically qualified as a member of the professions as an accountant at the time the petition was filed and eligible for the preference sought.” (Emphasis added.) Id.

The district director adjudicating the petition had denied the petition because he determined that the applicant was not academically qualified as a professional accountant at the time the petition was filed. Id. at 48. The district director reached this conclusion after assessing the applicant's academic preparation at colleges in the Philippines and the United States and her work experience in the United States. Id. The regional commissioner held that the district director's decision was “well-founded and correct…” Id.

On appeal, the applicant's counsel submitted evidence of academic units earned by the applicant subsequent to her filing of the petition and the district director's denial should be added to her total number of academic units for purpose of adjudicating whether she was academically qualified as a member of the professions as an accountant. Id. at 49.

The regional commissioner rejected counsel's position:

When a third preference petition is filed, it seeks to establish that the beneficiary is a qualified member of the professions at that time eligible for preference. If the petition is approved, he has established a priority date for visa number assignment as of the date that petition was filed. A petition may not be approved for a profession for which the beneficiary is not qualified at the time of filing.” (Emphasis added.) Id.

Thus, because the applicant was not eligible for preference classification as an accountant at the time she filed the petition, the district director's decision to deny the petition was affirmed. Evidence that the applicant subsequently met the petition requirements was not relevant to the question of whether she qualified as a member of the professions as an accountant at the time she filed the petition. The regional commissioner concluded by noting that the applicant was free to submit a new petition accounting for changed facts from when she filed her first petition. Id. at 50.

Matter of Great Wall (Employer must be able to pay offered wage at the time petition is filed)

On March 16, 1977, the INS published an acting regional commissioner decision as precedent in Matter of Great Wall, 16 I&N Dec. 142 (A.C. 1977) [PDF version].

In Matter of Great Wall, the petitioner was an Oriental gift shop and food store filing an immigrant visa petition for a citizen of Hong Kong. Id. at 142. The petitioner's job offer stated that it would pay the beneficiary $850.00 per month to work as a store manager. Id. at 144. The district director denied the petition on the basis that the petitioner was unable to pay the proffered wage to the beneficiary. Id. at 143.

On appeal before the regional commissioner, the petitioner conceded that its shop would suffer a loss. Id. The petitioner argued that the regional commissioner should take a “prospective view” of the business in light of the fact that the business was relatively new. Id. It also claimed that subsequent to the denial, the beneficiary began receiving wages, although the acting regional commissioner stated that no evidence was produced to support this claim. Id. at 143-44.

The acting regional commissioner took into consideration the prospect that the petitioner may be able to pay the monthly wage of $850.00 to the beneficiary at some point in the future. Id. at 144. The acting regional commissioner ultimately found this unavailing to the claim because “[t]he record in the instant case reflects that at the time the petition was filed with this Service the petitioner did not and could not pay the offered wage.” Id. For this reason, “the petitioner has not conclusively borne his burden and established on appeal that he can and will be able to pay the beneficiary the salary of $850.00 per month as offered on December 16, 1975.” Id. Based on the structure of the former employment-based sixth preference category, the acting regional commissioner stated “I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay the offered wage at the time the petition was filed, should subsequently become eligible to have the petition approved under a new set of facts hinged upon probability and projections, even beyond the information presented on appeal.” Id. at 144-45.

The acting regional commissioner then discussed the applicability of Matter of Katigbak, which he stated was “not foursquare with the instant case…” Id. at 145. Despite the differences, the acting regional commissioner recognized that “it was determined that the beneficiary must be qualified at the time the petition is filed with this Service if a priority date for visa issuance is to be established.” Id. In this case, the petitioner's ability to pay the offered wage was intrinsic to the beneficiary's eligibility for preference classification. The acting regional commissioner held that “[t]he petitioner in the instant case cannot expect to establish a priority date for visa issuance for the beneficiary when at the time of making the job offer and the filing of the petition with this Service he could not, in all reality, pay the salary as stated in the job offer.” Id.

For the foregoing reasons, the acting Regional Commissioner dismissed the petition.

Matter of Wing's Tea House (Extending Matter of Katigbak to former EB6 Category))

On March 22, 1977, the INS published an acting regional commissioner decision in Matter of Wing's Tea House, 16 I&N Dec. 158 (A.C. 1977) [PDF version]. Like Matter of Katigbak and Matter of Great Wall, Matter of Wing's Tea House has been heavily cited in administrative decisions since its issuance.

The petitioner filed a petition to accord status under the former employment-based sixth preference category to a beneficiary from China to work as a cook. Id. at 158. At the time the petitioner sought labor certification, the beneficiary did not have the requisite experience as a cook to qualify for EB6 preference. Id. at 159. After the beneficiary had accrued the requisite work experience, the petitioner sought recertification from the DOL. Id. The DOL advised the petitioner that recertification was unnecessary because the initial labor certification for the position remained valid. Id. With this understanding, the petitioner filed the EB6 petition with INS. Id. The petition was denied because the beneficiary had lacked the requisite work experience at the time labor certification was filed. Id.

Citing to Matter of Katigbak, the acting regional commissioner upheld the denial of the instant petition. “We find no reason to change [Matter of Katigbak's] line of reasoning simply because the preference sought is sixth rather than third. In either case, the beneficiary would receive a preferred priority date at a point in time when he is not qualified to perform the duties sought by the petition.” Id. at 160.

Matter of Michelin Tire Corporation (L1 Beneficiary Must Have Requisite Employment Time at Time of Filing)

On January 9, 1978, the INS published a regional commissioner decision in Matter of Michelin Tire Corporation, 17 I&N Dec. 248 (Reg. Comm. 1978) [PDF version].

In order to qualify for L1 classification, the petition beneficiary had to have been employed continuously with the petitioner at a qualifying entity abroad for the one-year period preceding the filing of the petition. In this case, the information contained in the petition indicated that the beneficiary had only been employed for nine months at the time of filing. Id. at 249. Citing to Matter of Katigbak, the regional commissioner held that “it must be concluded that the intra-company transferee must … have the required 1 year of experience at the time of filing the nonimmigrant petition in her behalf.” Id.

The decision is noteworthy in its explicit extension of the Matter of Katigbak reasoning to a nonimmigrant visa petition where priority dates were not at issue.

Matter of Dial Auto Repair Shop, Inc. (Extending Matter of Great Wall to successor petitioners)

On October 23, 1986, the INS published an INS commissioner decision as precedent in the Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1986) [PDF version].

Like Matter of Great Wall, the instant case involved a former EB6 petition where the pertinent issue was the petitioner's ability to pay the beneficiary at the time the petition was filed. The facts in Matter of Dial Auto Repair Shop, Inc. were slightly different.

In this case, Elvira Auto Body Repair Shop had filed a labor certification application on behalf of the beneficiary on May 17, 1983. Id. at 481. Before the Department of Labor (DOL) could adjudicate the labor certification application, Elvira Auto Body was dissolved and stopped doing business. Id. Shortly after Elvira Auto Shop was dissolved, the Department of Labor issued labor certification. Id. Dial Auto Repair Shop founded its business at the same location that had been occupied by Elvira Auto Body Repair Shop shortly after Elvira had been dissolved and picked up the petition. Id. The certifying officer approved a name change on the petition, and Dial Auto Repair Shop submitted an EB6 immigrant visa petition on behalf of the alien along with the job offer and labor certification that had been issued to Elvira Auto Body Repair Shop. Id.

The director initially determined that the petitioner Dial Auto Repair Shop had the financial ability to pay the beneficiary the wage that had been offered to the beneficiary by Elvira Auto Body Repair Shop. Id. at 481-82. However, the petitioner submitted no evidence indicating that Elvira Auto Body Repair Shop could have paid the offered wage at the time the visa petition was filed. Id. Citing to Matter of Great Wall, the Commissioner concluded that because May 17, 1983, the date the labor certification was filed by Elvira Auto Body Repair Shop, was the proper filing date of the petition, and the job being offered by the petitioner to the beneficiary was the same as the job offer from Elvira, it was “incumbent upon the petitioner to establish that the wage offer could have been met when the application for a labor certification was accepted for processing by the Department of Labor.” (Emphasis added.) Id.

Matter of Izummi (Applying precedents in EB5 context)

On July 13, 1998, the INS published an associate commissioner decision in Matter of Izummi, 22 I&N Dec 169 (Assoc. Comm. 1998) [PDF version].

The instant decision dealt with an EB5 investor petition. Citing to Matter of Katigbak, the associate commissioner held that “[a] petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts.” Id. at 175. Regarding this case, the associate commissioner held that “a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.” Id.

Matter of Christos, Inc. (Inconsistencies may be resolved with new evidence)

On April 9, 2015, the Administrative Appeals Office (AAO) decision in Matter of Christos, Inc., 26 I&N Dec. 537 (AAO 2015) [PDF version] was designated as precedential. We discuss the decision in a more comprehensive manner in a separate article [see article].

Matter of Christos, Inc. concerned an EB3 petition. Citing to Matter of Wing's Tea House, the AAO explained that “a beneficiary must possess all the education, training, and experience specified on the labor certification as of the petition's priority date.” Id. at 539. In the instant case, the AAO had, in dismissing the petitioner's appeal in the first instance, “identified inconsistencies that precluded the petitioner from establishing the beneficiary's qualifications.” Id. The AAO then explained that the petitioner had resolved the inconsistencies with the submission of new evidence after the AAO reopened the decision. Id.

Matter of Christos, Inc., highlights that, where the issue is only a lack of evidence to establish the beneficiary's qualifications, the petitioner may resolve the issue with new evidence. The petition may be approvable provided that it was approvable at the time of filing, had the petitioner submitted all of the necessary evidence.

Line of Cases on Family-Sponsored Petitions

Matter of Bardouille (Applying prior precedents in family petition context)

On September 22, 1981, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) [PDF version].

The petitioner filed immigrant visa petitions on behalf of his two children. The children were born out of wedlock. Id. at 114. In order to be considered the petitioner's children for immigration purposes, the petitioner was required to legitimate the beneficiaries.

In the instant case, the claimed legitimization of the beneficiaries occurred after he had filed the immigrant visa petitions on their behalf. Id. at 115. The Board noted that the priority date for family-sponsored immigrant visa petitions is the date on which they are properly filed. Id. The Board extended the reasoning from the INS's precedents in employment-based categories to the family context: “[T]he rationale expressed in Katigbak and Wing's Tea House also applies with equal force here; qualifying facts which come into being only subsequent to the filing of a preference visa petition may not be considered in support thereof, since to do so would result in granting the beneficiary a visa priority date at a time when he was not qualified for the preference classification sought.” Id. at 116. Because the beneficiaries were not eligible for immigrant visas as the children of the petitioner at the time of filing, the Board dismissed the petitioner's appeal.

The significance of Matter of Bardouille is that the Board applied the principles used in employment-based petitions to family-sponsored petitions. The petition must be approvable when filed. If the petition only becomes approvable at a time after filing, it must be denied. In the context of a petition depending on a specific family relationship, the relationship must exist at the time of filing.

Matter of Drigo and Matter of Atembe (applying Matter of Bardouille in family petition cases involving intervening change in the laws)

Matter of Bardouille has been applied in other family petition contexts as well. In Matter of Drigo, 18 I&N Dec. 223 (BIA 1982) [PDF version], the Board upheld the denial of a visa petition filed on behalf of an adopted child because the petitioner's adoption was untimely under the laws in effect at the time the petition was filed. This decision came despite the fact that the adoption would have been considered timely under a change in law that occurred prior to the Board's decision but subsequent to the filing of the petition. Id. at 224. The Board applied the same logic with regard to a change in the legitimization rules in Matter of Atembe, 19 I&N Dec. 427 (BIA 1986) [PDF version].

These two decisions are significant in that they interpret Matter of Bardouille and associated precedents as applying even if an intervening change in law after the petition was filed would have led to the petition being approvable under the same set of facts. Notwithstanding intervening change of laws, whether a petition was approvable when filed depends on the laws in effect at the time the petition was filed.

Matter of Pazandeh (Matter of Bardouille does not apply where petitioner's burden lapses due to passage of time)

On April 6, 1989, the Board published a precedent decision in Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989) [PDF version]. We discuss the decision in full in a separate article [see article].

The petitioner filed an immigrant visa petition on behalf of her spouse. Id. at 884. After that marriage dissolved, she filed an immigrant visa petition on behalf of her second spouse. Id. at 884-85. Under the applicable laws at issue, the petitioner was required to establish that her previous marriage was bona fide by clear and convincing evidence since five years had not elapsed between her having gained lawful permanent resident status through marriage and her seeking to accord such status to another based on marriage. The petition was denied on the basis that the petitioner failed to establish the bona fides of her prior marriage through clear and convincing evidence. Id. at 885-86.

The Board concluded that addressing the bona fides of the petitioner's original marriage had become moot with the passage of time since more than five years had elapsed since the petitioner had gained lawful permanent resident status at the time the appeal was adjudicated. The government relied on Matter of Bardouille, Matter of Drigo, and Matter of Atembe to argue that the issue had not been mooted because it was relevant at the time of the second filing. Id. at 886. The Board disagreed on the basis that the petitioner had not been ineligible to confer lawful permanent resident status at the time of filing. Id. Rather, the petition would be approvable either when five years elapsed since she had gained status through marriage or if she established through clear and convincing evidence that the previous marriage was bona fide. Id. The Board held that “[u]nder these circumstances, where the petition was initially approvable subject to the petitioner's meeting a burden which has lapsed with the passage of time, we do not find the rationale expressed in the Bardouille line of cases to be applicable.” Id.

Matter of Carbajal (Properly re-filed petition constitutes new petition)

On April 27, 1992, the Board of Immigration Appeals (BIA) decided Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992) [PDF version].

In this case, the petitioner, then a lawful permanent resident, filed a petition on behalf of his sister. Id. at 461. The petition was returned to him on the basis that a lawful permanent resident cannot accord preference classification to a sibling. Id. at 461-62. After the petitioner became a citizen, he re-filed the same petition, stamped with the new time and date of filing, and submitted with the proper fee. Id. The petition was denied on the basis that the regional center director adjudicating the petition adjudicated it based on the initial filing date. Id. The Board noted that the issue in Matter of Bardouille and its successor cases was whether the petition was approvable at the time of the filing date. Id. at 462-63. Based on the facts of the instant case, the Board held that the filing date was the date on which the petitioner filed the petition the second time, stamped with the time and date and accompanied by the appropriate filing fee. Id. at 463. Because the petitioner was then a citizen, the Board sustained the petitioner's appeal and remanded for further proceedings.

Conclusion

This article highlights the numerous published immigration precedents on the rule that a petition — whether employment-based or family-sponsored — must be approvable at the time of filing. This principle remains good law unless a statute or regulation specifically stipulates otherwise with regard to specific types of filings.

Before filing a petition, those affected should consult with an experienced immigration attorney for case-specific guidance. An attorney will generally be able to determine whether a beneficiary is categorically ineligible for the benefit under statute and/or regulations. An attorney may also assess the likelihood of success in the case that the beneficiary is not ineligible. If the petitioner opts to go forward with the petition, an attorney may assist the petitioner in compiling the necessary evidence and complying with all applicable requirements in order to help the petitioner make the best possible case for approval.

To learn more about these and related issues, please see our website's growing sections on employment immigration [see category], investment immigration [see category], family immigration [see category], and work visas [see category].