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Liu v. Immigration and Naturalization Service

Dismissal of action for judicial review of INS's denial of plaintiff's petition for national interest waiver and second preference employment-based immigration (EB-2) affirmed on ground that complaint was moot; after INS's denial, plaintiff's petition for EB-1 status was granted.

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Argued October 11, 2001

Dr. Shubing Liu appeals from the judgment of the district court dismissing his action for judicial review of the Immigration and Naturalization Service’s denial of his second preference employment-based immigration petition. Because Dr. Liu has been granted first preference employment-based immigrant status, we hold that his case is moot.

Dr. Liu, a Chinese citizen engaged in medical research in the United States, filed a second preference employmentbased petition (an “EB-2″ petition) pursuant to 8 U.S.C. s 1153(b)(2), which allows visas to be granted to aliens of exceptional ability and aliens who are members of the professions holding advanced degrees. Petitions for EB-2 status generally must include both a job offer and a certification from the Department of Labor. See 8 C.F.R. s 204.5(k). Although Dr. Liu had a job offer from the University of Pittsburgh School of Medicine, he lacked the requisite labor certification. Therefore, Dr. Liu sought a waiver pursuant to 8 U.S.C. s 1153(b)(2)(B)(i), which permits the INS, via authority delegated from the Attorney General, to waive the job offer and labor certification requirements if such a waiver is found to be in the “national interest.” See Kooritzky v. Reich, 17 F.3d 1509, 1510 n.1 (D.C. Cir. 1994).

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