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United States Court of Appeals for the Ninth Circuit
February 12, 2019, Argued and Submitted, San Francisco, California; August 28, 2019, Filed
[*869] O'SCANNLAIN, Circuit Judge:
We must decide whether federal courts may review the denial of a "national-interest waiver" by the United States Citizenship and Immigration Services to an Iranian citizen with advanced engineering degrees who sought a permanent visa.
Mohammad Poursina is an Iranian citizen with two degrees in mechanical engineering from the University of Tehran. In 2006, he entered the United States on a student visa to continue his studies at the Rensselaer Polytechnic [**4] Institute in Troy, New York. Between 2006 and 2011, Poursina's student status authorized him to live and to work in the United States, but his authorization lapsed after he earned his doctoral degree. Thus, in June 2012, Poursina asked the United States Citizenship and Immigration Services ("USCIS") to grant him a permanent employment-based visa under 8 U.S.C. § 1153(b)(2).
Pursuant to such provision, ] USCIS may grant work visas to immigrants holding "advanced degrees" or to those with "exceptional ability in the sciences, arts, or business."2 8 U.S.C. § 1153(b)(2)(A). Generally, an immigrant seeking a work visa must show that his "services . . . are sought by an employer in the United States." Id. To do so, he must obtain a "labor certification" from the United [*870] States Department of Labor. See 8 U.S.C. § 1182(a)(5)(A), (D); 8 C.F.R. § 204.5(k)(4).
But there is an exception to the labor-certification requirement: "[USCIS] may, when [USCIS] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services . . . be sought by an employer in the United States." 8 U.S.C. § 1153(b)(2)(B). No statute defines when such a "national-interest waiver" should be granted, but USCIS has issued "precedent[ial] decision[s] establishing a framework for evaluating [**5] national interest waiver petitions." In re Dhanasar, 26 I. & N. Dec. 884, 886 (USCIS AAO 2016) (citing In re N.Y. State Dep't of Transp. (NYSDOT), 22 I. & N. Dec. 215 (BIA 1998), overruled by Dhanasar, 26 I & N. Dec. at 884).
Poursina could not show that an employer sought his services, so he requested a national-interest waiver when he submitted his 2012 visa application. In 2014, USCIS denied his request, and Poursina then appealed to USCIS's Administrative Appeals Office ("AAO"). The AAO concluded that the "evidence submitted" did not "establish that a waiver of the requirement of an approved labor certification w[ould] be in the national interest of the United States." The AAO therefore dismissed Poursina's appeal.
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936 F.3d 868 *; 2019 U.S. App. LEXIS 25981 **; 2019 WL 4051593
MOHAMMAD POURSINA, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DAVID ROARK, Director, Texas Service Center, United States Citizenship and Immigration Services; JAMES MCCAMENT, Acting Director, United States Citizenship and Immigration Services; RON ROSENBERG, Chief, Administrative Appeals Office, United States Citizenship and Immigration Services, Defendants-Appellees.
Prior History: [**1] Appeal from the United States District Court for the District of Arizona. D.C. No. 4:16-cv-00591-RCC. Raner C. Collins, District Judge, Presiding.
Poursina v. United States Citizenship & Immigration Servs., 2017 U.S. Dist. LEXIS 186630 (D. Ariz., July 31, 2017)
national-interest, national interest, discretionary, decisions, alien, visa, jurisdictional bar, federal court, district court, provisions, deems, waive, decision to deny, regulation, Immigration, argues, notice
Immigration Law, Types of Immigrants, Employment Based Preferences, Advanced Degree & Exceptional Ability, US Department of Labor Certification, Types of Immigrants, Judicial Proceedings, Jurisdiction, Adjustment of Status, Judicial Review, Employment Based Preferences