Introduction

Introduction

Due to many factors including a weakened job market, slowing economy, and the US war on terrorism, the USCIS has responded by tightening nearly all employment-based categories. This is already evident through the heightened scrutiny that the USCIS has placed on H-1b applications. As a result, it is not too surprising to see that this USCIS crackdown has spilled over to the NIW category as well. Many attorneys and law firms are no longer having the same type of success with these kinds of cases; what normally worked in the past is not as effective today. It seems that the USCIS may have possibly altered their adjudication practices and are requiring NIW applicants to qualify under a stricter and more demanding standard. However, Z&A has kept abreast of USCIS procedures and have modified our practice accordingly to meet these new standards.

Discussion

Filing a successful NIW application is more difficult nowadays because it seems that each of the four USCIS Service Centers has their own standard of adjudicating NIW cases. We have broken down our observations of current USCIS adjudication practices regarding NIW petitions below.

1. California Service Center

Since June 2002, the California Service Center (CSC) has issued requests for additional evidence (RFE) for the majority of NIWs filed with their service center. In addition, it seems that the CSC has raised the standards for NIWs as well. Instead of using the "minimally qualified" standard to evaluate the applicants' qualifications for an NIW, the CSC has been requiring the applicants to show that they will contribute more significantly to research than "other well-qualified, experienced, and highly skilled researchers." Moreover, the USCIS has also been requiring the applicants to obtain letters of recommendation from recognized government, research organizations, or major agencies attesting to the impact and significance of their research accomplishments.

After receiving CSC's requests for additional evidence under their stricter requirement, Z&A has begun to modify our petition letters and our approach to address this new standard. Furthermore, we also have been informing our clients of the importance of getting letters of recommendation from recognized government, research organizations, or major agencies. Understandably, many applicants find it difficult to obtain such a letter of recommendation. As a result, applicants should at the very least try and obtain multiple letters from other independent researchers who have never worked with them in the past. According to our recent experiences, the CSC has been quicker to issue an approval if applicants can produce a letter of recommendation from a recognized government, research organization, or major agency.

2. Nebraska Service Center

The Nebraska Service Center (NSC) has been particularly difficult in its adjudications of National Interest Waiver petitions in recent months by denying many petitions without issuing a Request for Further Evidence (RFE). This is troubling not only because the issuance of a RFE is required under the USCIS internal operation procedure before a petition can be denied, but also because many of the concerns raised by the USCIS in the denials could have been answered if the USCIS had simply provided an opportunity to respond to its concerns through the issuance of an RFE. Advocating aggressively for our clients as always, we filed motions to reopen some cases that received direct denials. Additionally, our office contacted the NSC supervisor and brought the erroneous behavior of the adjudicators to his attention. The NSC supervisor admitted that the USCIS officers in question had acted improperly and the NSC is in the process of reopening all of the denied NIW cases for further review and proper adjudication.

Notwithstanding the aforementioned difficulties, starting from late January, we have successfully obtained from NSC several approvals of NIW petitions submitted by Z&A , a sign that may be interpreted as NSC’s retreat from its unusually aggressive stance on NIW petitions up to this point.

Even more encouraging news came from the USCIS Office of Administrative Appeals in late January, which sustained Z&A’s appeal from NSC’s denial of a NIW petition and approved the underlying petition. During the initial petition, the NSC erroneously found that the record lacked such materials from independent sources, and denied the petition in part on that basis. More importantly, the NSC seemed to require overwhelming proof from the petitioner, notwithstanding several letters submitted by experts both from the petitioner’s immediate circle of colleagues and outside sources to support the petitioner’s request for a NIW.

On appeal, we successfully demonstrated that NSC’s decision contained a material error of fact to the Office of Administrative Appeals. The Office of Administrative Appeals further stated that while the evidence of record does not present the “strongest possible” case (lacking, for instance, documentation of heavy citation of the petitioner’s published work), the petition should still be approved if the documentation appears to be, on balance, “sufficient.” An order to sustain the appeal and approve the petition was subsequently entered. The success of the appeal not only means that our client’s NIW petition has been approved, but also provides us useful authority to rebut the NSC in future cases where it requires strongest possible evidence, instead of sufficient evidence as directed by The Office of Administrative Appeals.

3. Vermont Service Center

Although the Vermont Service Center (VSC) does not seem to have changed their approach much, the processing times have been lengthened considerably. It normally took the VSC only 3 - 4 months to adjudicate such cases in the past. However, it is now taking 8 - 12 months for an approval. It is also our opinion that the VSC has the most detailed RFEs and will also at times request that the applicant obtain a letter from a government agency or laboratory.

4. Texas Service Center

Like the VSC, the Texas Service Center (TSC) does not seem to have changed much in their approach in adjudicating NIW petitions. Applications filed in the TSC are still easier to get approved than the other service centers. Although our office has rarely received an RFE from the TSC requesting a letter from a government agency or laboratory, it is not uncommon for the TSC to want a letter from someone that has never previously worked with the applicant. Regarding the most recent news from the TSC, please click here.

Conclusion

There is no denying that this USCIS shift is troubling. Not only does this lead to additional work that makes NIW petitions more time consuming and nerve-wracking for NIW applicants, but it also leads to greater denials. Therefore, it is more important than ever to find an experienced law firm with a strong background in filing NIWs to assist applicants in their NIW petition. Z&A, which has filed nearly 1,000 successful NIW applications, is attentive to any changes in USCIS procedure and is quick to adapt to new USCIS standards in order to better serve our clients' needs.

(01/03/2008)

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