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Not Those Great Walls

I will briefly discuss an immigration issue pertaining to the matter of a certain Great Wall.

I do not mean the debate over whether to build a wall (great, big, beautiful, or otherwise) on the Southern border, one of the defining political issues of the last several years.  Although the great wall debate presents many fascinating legal, logistical, and national interest questions, those complicated issues will have to be left for another day.

Nor do I refer to the country which hosts the actual Great Wall, the People’s Republic of China.  Similarly to our wall, there are and will be many immigrationrelated debates on whether and how to protect the interests of the United States in light of the duplicity and espionage of the Chinese Communist Party and its role ongoing Wuhan coronavirus outbreak.  While this debate too presents many fascinating legal, logistical, and national interest questions, it is not the Great Wall of which I will speak.

Instead, I will briefly discuss the immigration precedent decision Matter of Great Wall, 16 I&N Dec. 158 (Acting R.C. 1977).  This decision makes no reference to either American walls or the walls in the People’s Republic of China, but one must concede that the name bears some humor in hindsight.

What is the Matter of Great Wall?

On March 16, 1977, an acting regional commissioner of the former Immigration and Naturalization Service decided an appeal from an Immigration and Naturalization Service district director’s denial of an immigrant visa petition in the former employment-based sixth preference category filed by Great Wall Inc.  (The Immigration and Naturalization Service was a component of the Department of Justice.  It was dissolved in 2003, with nearly all of its functions being transferred to components of the Department of Homeland Security.)

Visa petitions are administratively denied on a regular basis.  Many of these denials are appealed for administrative review, and those appeals are sometimes granted, albeit more often denied.  In the vast majority of cases, the final decision is filed away and has no effect on other cases.  However, in rare cases, a decision may be published, in which event it becomes an administrative precedent.  Rules from precedent decisions are binding in other cases – although many precedents were forgotten nearly as quickly as they were published in the dusty volumes of the Administrative Decisions Under Immigration & Nationality Laws.

Since 1941, thousands of decisions have been designated for publication, albeit only a minuscule fraction of all decisions.  The matter of Great Wall Inc. was one such decision, and it was published as Matter of Great Wall, 16 I&N Dec. 158 (Acting R.C. 1976).  That is, it was published in volume 16 of the Administrative Decisions Under Immigration & Nationality Laws, starting on page 158, and decided by the acting regional commissioner in 1976.

The Matter of Great Wall in Brief

The issue in Matter of Great Wall was whether the petitioner, “an Oriental gift shop and food store,” had the ability to pay the beneficiary, “a 25-year-old male … native of China, and citizen of Hong Kong,” the proffered wage at the time the petitioner filed the immigrant visa petition.  Based on the facts in the record relating to the petitioner’s finances, the regional commissioner determined that the petitioner did not have the ability to pay the proffered wage when it filed the petition.  Because an immigrant visa petition must be approvable at the time of filing, and because being able to pay the proffered wage is a prerequisite to appeal, the regional commissioner dismissed Great Wall Inc.’s appeal.

Unlike the majority of precedent decisions, Matter of Great Wall has been heavily cited and remains relevant in visa petition cases today.  It is part of a line of influential precedents from the 1970s and 1980s on the requirement that a visa petition must be approvable when filed.

Coming Full Circle

I digress, however, for  I do not wish to expound further on when visa petitions are approvable.  I only bring the Matter of Great Wall to the attention of New Leaf Journal readers because the name of the case inadvertently invokes two major contentious issues today.  Were one to hear something about a “great wall” and immigration, he or she would most likely think either of the border wall or a joke about the behavior of the Chinese government.  But with this alert in mind, if you hear about immigration and the Matter of Great Wall, you will know that the reference is to a 44-year old administrative decision by an agency that no longer exists about a visa category that also no longer exists.