小白兔及各位大侠：
感谢回帖。请帮助分析一下移民局来信，我该如何APPEAL，有无希望。万分感谢！在线等。
The self-petitioner filed I-140 with this office under section 203(b)(2)(B) aliens who are members of the professions holding advanced degrees or aliens of exceptional ability of the Immigration and Nationality Act (Act) seeking classification of him/herself as an alien who is a member of the professions holding advanced degrees. In addition, the self-petitioner is seeking a waiver of the job offer and labor certification in the national interest.
Title 8 Code of Federal Regulations (CFR) at Part 103.2(b) governs the responsibility of the applicant or petitioner when filing an application or petition with the Service. See § 103.2(b).
An applicant or petitioner must establish eligibility for a requested immigration benefit. An application or petition must be completed as applicable and filed with any initial evidence required by regulation or by the instructions on the form. Any evidence ted is considered part of the relating application or petition. § 103.2(b)(1)
If there is evidence of ineligibility in the record, an application or petition shall be denied on that basis notwithstanding any lack of required initial evidenced. § 103.2(b)(8)
In general,
The grant of a nonimmigrant visa petition does not vest any rights to receive immigrant classification from an immigrant visa petition since the grant of a nonimmigrant visa petition is bestowed base on the merits of the record at the time of the decision. A nonimmigrant visa petition is neither subject to res judicata since a nonimmigrant visa petition may be reopened at any time under 8 CFR 214.2 in revocation proceedings.
Statute dictates:
Visas shall be made available to…qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare or the United States…Section 203(b)(2)(A)
The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—(H) and lien (i)(b) subject to section 212(j), who is coming temporarily to the United States to perform services…in a specialty occupation descried in section 214(i)(1)…Section 101(a)(15)(H).
The record reflects that the self-petitioner report in Part 6 (Basic information about the proposed employment) of the Form I-140 that the employment position is not a permanent position.
As cited above in section 203(b)(2) and section 101(a)(15)(H) of the Act, qualified immigrants who are members of the professions holding advanced degrees and an alien who is coming temporarily to the United States to perform services…in a specialty occupation described in section 214(i)(1)
U.S.CIS policy memorandum1 states:
Denial with evidence of Clear Ineligibility
[…]
Inability to meet basic statutory or regulatory requirement includes circumstances where the evidence ted by the applicant or petitioner clearly establishes that the filing is categorically ineligible for approval.
The record reveals that the alien is seeking to come to the United States as a nonimmigrant rather than an immigrant. Classification under section 203(b)(2) of the Act is no available to nonimmigrants.
In matter of Izummi, 21 I&N, Dec. 169 (Assoc. Comm 1998), “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. See Matter of Katigbak, 1414 I&N Dec. 45, 49 (Comm. 1971). Therefore, 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”.
In Matter of Brantigan, 11 I&N, Dec. 493 (BIA 1966), the Board of Immigration Appeals held that in visa petition proceedings the burden of proof establishing eligibility for the benefit sought rests with the petitioner.
This office has no choice but to deny the instant petition at this time for the reasons cited, based on the evidence at hand.