When is a beneficiary materially "qualified" for a Priority Date?


You have just received an RFE telling you that your client did not have the qualifications required when the Labor Certification or other employment based petition was initially filed, and that the beneficiary must be eligible for the benefit at the time of filing. The RFE cites In re Izumi, 21 I&N 169 (Assoc. Comm. 1998, and Matter of Katigbak, 14 I&N Dec. 45 (Comm. 1971). According to In re Izummi: “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, 14 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.”

Now that USCIS has hurled these mighty precedents at you, is all lost? Might there be a brave knight out there to save your damsel in distress? Perhaps. (What else would a lawyer say!) The solution may lie in the availability of the priority date. Matter of Katigbak was decided in 1971 in the context of determining eligibility for what was at the time, a long backlogged Philippine professional quota (at that time, the 3rd preference). Katigbak’s rationale was that all of the beneficiary’s qualifications for labor certification, or for a visa petition, must be in place when the application is filed. Otherwise an unqualified beneficiary could jump their place in line by filing without having the required qualification and later obtaining it. As stated in Katigbak: “To do otherwise would make a farce of the preference system and priorities set up by statute and regulation.” Izumi appears to qualify Katigbak by saying that the changes in qualifications or, as referred to in Katigbak “facts”, must be “material.”

The two precedent decisions make perfect sense, provided that the particular quota involved is backlogged.

Aha! – but now the brave knight arrives (Or, perhaps, Victoria’s messenger). What if, when the application was filed, the priority date was current? There is no line to jump, and no advantage to be had by not obtaining all material qualifications at the time of filing. The rationale of Katigbak falls away.

Of course, I have made this argument in RFEs regarding hyper technical deficiencies when the Center Director has launched their Katigbak shaft. However, my argument was, not surprisingly, ignored. You, gentle reader, are invited to pick up the lance.

Reprinted with permission.

About The Author

Eugene Goldstein

Eugene Goldstein is the Managing Attorney of Eugene Goldstein and Associates. He is a graduate of CCNY and the School of Law of Washington University in St. Louis. He has been practicing immigration law in the NYC tristate area for more than 40 years (since before Katigbak was a glint in the Commissioner's eye) during which time he has taught, spoken, and served in various capacities in various organizations. He can be reached at eglaw@aol.com or through eglaw-group.com.