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National Interest Waivers: What sorts of professions are approved on appeal?

Visa petitions for those seeking a National Interest Waiver (NIW) are filed with U.S. Citizenship and Immigration Services (USCIS). Depending on the immigration benefit sought, denials may be appealed to the Administrative Appeals Office (AAO), the Board of Immigration Appeals (BIA), or federal district court. The AAO is an office within USCIS that reviews denied petitions, the BIA falls under the Department of Justice and generally reviews the work of immigration judges and directors of the Department of Homeland Security, and federal district court has general federal jurisdiction, including interpreting the immigration laws of the United States.

When NIW petitions are denied, the AAO is the sole recourse for appeal. Federal courts at the district and appellate level have been unanimous that they have no jurisdiction to review a denied NIW since the law is clear that waivers may be granted and no one is entitled to one.

When a case is appealed to the AAO its chances are not good. USCIS keeps statistics (link), with one of the worst being its FY15 H-1B appeals in which 504 were denied and only 16 were approved (with 9 remanded back to the director for further adjudication). Thankfully statistics for NIW are not as bad, although they are still not great. Since Matter of Dhanasar was decided on December 27, 2016, the most illustrative category to look at is I-140I since FY 17. The government fiscal year starts on October 1, so there are nearly three months of overlap with the prior NYSDOT precedent, but the NIW appeal stats are below:

FY 17: 47 total cases, 12 approved on appeal.

FY 18: 44 total cases, 6 approved on appeal, 1 remanded.

FY 19: 36 total cases, 3 approved on appeal, 6 remanded.

Combined the total approval rate is 18.89% but without FY 17 buoying the results, that drops to an 11.25% approval rate over the previous two years.

Before taking a closer look at the approvals below, it should be noted that AAO cases are divided into precedent and non-precedent. Precedent cases, such as Matter of Dhanasar, bind all USCIS officers when adjudicating petitions. The NIW three-prong test developed in Matter of Dhanasar is therefore used on all NIW petitions. Non-precedent cases are published, but have no effect on future petitions due to differing facts and circumstances. These non-precedent approvals do not have any immediate application to other cases, but can be used to show the sorts of occupations the AAO values granting NIWs to when considering an appeal or for persuasive additions when drafting initial petitions. A further disclaimer is that many NIWs are outright approved and these occupations are not reflected below, and most cases are not appealed but are simply refiled. Statistics for these two types of cases are not available, and the below list is not representative of the only occupations that are eligible for National Interest Waivers.

Without further ado, here are all the NIW approvals at the AAO since December 27, 2016:

Occupation Name of Case Year
Biostatistician Matter of K-A- Dec. 27, 2016
Consultant (veterans medical care) Matter of E-C-H- Dec. 27, 2016
Engineer, chemical Matter of R-T-I- Mar. 27, 2017
Engineer, electrical Matter of K-Q- Oct. 2, 2018
Engineer, mechanical and biomedical Matter of M-M- Jan. 4, 2017
Engineer, metallurgical Matter of F-E- Mar. 20, 2017
Engineer, software Matter of T-U-O-A- Dec. 29, 2016
Entrepreneur, agribusiness Matter of E-J-C-D-H- Sept. 19, 2018
Geosteering researcher and developer In Re: 6206115 Dec. 3, 2019
Physician Matter of I-O-A- Jan. 25, 2019
Processor, mathematics Matter of L-X- Mar. 16, 2018
Researcher, biomedical engineering Matter of P-Y-G- June 5, 2019
Researcher, biostatistics Matter of P-J- July 13, 2018
Researcher, cancer Matter of E-A-A- Dec. 27, 2016
Researcher, computer science In Re: 7209032 Feb. 7, 2020
Researcher, electrical engineering In Re: 6941826 Jan. 10, 2020
Researcher, foodborne pathogens Matter of G-D-K- Oct. 23, 2019
Researcher, cardiovascular disease Matter of K-H-S- June 7,2017
Researcher, pathology & cellular biology Matter of M-M-O- Jan. 17, 2019
Researcher, public health Matter of S-M-M-S- Aug. 22, 2018
Social protection specialist Matter of A-A-A-A- Aug. 11, 2017
Surgeon Matter of U-H- Aug. 31, 2018

Can I file an I-140 while in F-1 status?

Likely yes, but nonimmigrant intent must still be proved when re-entering the U.S.

INA 214(b) is the pertinent section of law that presumes everyone coming to the U.S. has immigrant intent unless proven otherwise. In order to convince the State Department that one intends to return home, a connection to home must be shown through maintenance of a foreign address, family and social ties, or other means.

Overview

Most F-1 students on OPT tend to transition to H-1B at and then work for some time before an employer opens a PERM case for them. Because H-1B is dual intent there is no issue with leaving and re-entering the U.S. with a pending I-140. In some cases, however, a highly qualified graduate student, or a very lucky recent graduate, may be in the situation of having an I-140 filed while still in F-1 status. The issue that arises is: does the I-140 impute immigrant status, preventing re-entry in F-1 status?

Dual Intent and Quasi Dual Intent

Before covering F-1, let’s look at how other visa types are assessed. First, H-1B, L-1, and K visas are dual intent, so there is no issue with entering or re-entering on those. O and P visas are “quasi dual intent,” meaning that the law does not expressly state as such but in effect they are treated that way. 9 FAM 402.13-10 states very clearly that “’dual intent’ is permissible for O-1 visa holders.”

As applied to P visas, 9 FAM 402.14-11(A) states: “DHS has determined that the approval of a permanent labor certification or the filing of an immigrant visa petition for an alien is not a basis for denying a P petition, or for DHS to deny a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.  However, this ‘dual intent’ provision does not apply to essential support personnel.”

Less than Quasi Dual Intent (but still dual intent)

Here it starts to get a bit more complicated. TN and E-2 visas are strictly nonimmigrant visas for work and investment, respectively, that have no INA provision allowing dual intent, but are still treated as such.

TN visas holders merely need to show nonimmigrant intent at the time of their entry. If they have immigrant intent in the distant future, as long as it is not connected with the immediate entry, then they are admissible. 9 FAM 402.17-7 states that “An intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.” This also comports with a June 18, 1996 INS letter that reads, “The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily.”

The letter continues that a TN applicant may be denied if the officer is not satisfied the present trip has nonimmigrant intent, but the filing of an I-140 by itself does not establish immigrant intent in and of itself.

E-2 visa holders may also file an I-140 or I-130. E-2 status alone does not permit any sort of immigrant intent, but a U.S. employer or family member may still file the appropriate form to sponsor someone in E-2 status. The beneficiary must then file Form I-508 to waive certain rights under the treaty. Although E-2 is not dual intent, if permanent residency is sought through family or employment, it is still possible (re-entry may be an issue, however).

Common Law

The BIA and federal courts have distinguished desire from intent. Wishing to become a permanent residency at some point in the future if possible is different than having the intent at entry. Going all the way back to 1924, in Chryssikos v. Commissioner of Immigration, Ellis Island, N.Y., the court stated that “there is a great difference between wanting to stay and intending to stay. And proof of a desire to stay is not proof of an intent to stay.” This was confirmed 66 years later in 1990 in Lauvik v. INS when the court stated that there was a “long line of precedent holding that an alien's desire to remain in the United States does not negate his intent to depart upon termination of his temporary status.” Lauvik was in E-2 status, and the Ninth Circuit quoted the Chryssikos case.

Back to F-1 students, who are admitted for duration of status, the mere filing of an I-140 shouldn’t affect that. In Matter of Hosseinpour, the BIA stated, “Where a nonimmigrant respondent indicates his desire to remain in this country permanently . . . [it] does not constitute a failure to maintain status . . .”

Conclusion

Dual intent is a unique concept in American immigration law, and there is no clear way to determine what constitutes immigrant intent. For F-1 students, filing an I-140 should not automatically imply immigrant intent. The officer must make that determination on a case-by-case basis, and while the filing of an I-140 may raise questions, it can be negated by evidencing strong ties back home. By contrast, filing an I-485 carries significantly more risk. As long as there is still a provable intent to return home after the completion of studies or OPT, an F-1 student should be admissible with a filed I-140.

EB-1A and EB-2 DIY versus hiring a lawyer

EB1-A and EB-2 visas allow an individual to petition himself or herself without a company sponsor. USCIS also lays out the requirements right on their website, so self-petitioning with a do-it-yourself kit should be fairly straightforward, right? DIY websites make a lot of claims, and indeed many people have successfully done it on their own, but read below for some considerations about the main benefits of DIY kits before spending your money and time on one.

DIY kits are cheaper

On this point, DIY is absolutely the cheapest option when compared to paying an attorney. Kits generally range in price from $50 to $250, plus the USCIS filing fee of $700 (or $2,140 total if using premium processing). Using a kit, your visa petition will cost you around $1,000.

However, depending on your circumstances, hiring an attorney may be a negligible cost in the grand scheme of things. If your visa is approved, especially if you are outside the U.S., you will need to move yourself and your family, sometimes without a job already lined up. International moving expenses, plus a gap in salary, will likely eclipse any attorney fees in the immigration process. However, if you are already in the U.S. and want to have a go at doing it yourself, and can part with the $700 filing fee, then a DIY kit may make sense.

You do all the work yourself anyway

This is a common sales tactic for DIY kits – that if you hire an attorney, they will just make you do everything anyway. It is true that you need to take time to make a detailed CV and collect evidence, including reference letters, but an attorney can help guide you through this. An experienced attorney will be familiar with the types of evidence that satisfy the criteria as well as common pitfalls to avoid. Several examples that could result in a petition denial include:

-          Template reference letters. If your references work off a template that you provide, and you in turn provide the letters to USCIS, in the event of duplicated language between two different signers it can lead USCIS to become skeptical of all the evidence in the petition.

-          Poor national interest argument. For EB-2 cases with a national interest waiver you need to not only show your exceptional ability, but that your field is in the national interest of the U.S. This is not a clearly defined term but if glossed over entirely, or argued in the wrong way, your petition is unlikely to be approved.

-          Highlighting the wrong evidence. You will need to provide appropriate evidence to satisfy each criterion. In the example of media coverage, you will need to show media articles that are about you or your impact to your organization, that have been covered in major media. An attorney can help you determine which media reports are likely to qualify and which are best omitted. Of course, when in doubt you could just submit everything and see what sticks, but overwhelming USCIS with irrelevant evidence is unlikely to be as compelling as documentation that is targeted and concise.

No one knows your field as well as you

This is a true statement, but it is one that does not make a good argument. You will know your field better than an immigration attorney, but that does not mean USCIS has technical adjudicators that are familiar with industry jargon or advanced terminology. If you purchase a kit it is probably best to run your visa petition through a trusted friend or professional from outside your industry to ensure it makes sense to them. An immigration attorney can help distill your core skills and accomplishments and present them to USCIS, but you can do this yourself with an outside review. Be sure to explain the importance of any awards you receive, the financial impact of projects you supervised, and steer away from terminology that someone cannot understand from just reading your petition letter and CV.

The kit has all the templates

This requires the most caution. Ensure the forms you are submitting are current by checking USCIS’ website. Furthermore, ensure that you submit ETA-750B, in duplicate, if you are filing an EB-2 with national interest waiver, and that your arguments comport with Matter of Dhanasar. Templates are a good starting point but lack the nuance for each person and may not have broad applicability. For example, a doctor or engineer template may not properly apply to an artist or architect. Templates and kits are also a onetime purchase that are unavailable for further guidance or help in the event of a Request for Evidence (RFE) or consular processing. An experienced immigration attorney will determine admissibility before you file your petition so your time and effort is not wasted when the day finally comes to interview for your green card.

 

DIY kits for EB-1A and EB-2 visa petitions are a viable alternative for cost sensitive consumers, but if you wish to engage an experienced immigration attorney, no matter what step you are on in your green card journey, please contact us today.

Don't forget this important DOL form with your EB-2 petition

What is Form ETA-750B?

Immigrant visas must first undergo a Department of Labor (DOL) certification process. Oftentimes this is lengthy and involves DOL determinations, recruitment, and finally certifications before a visa petition can be filed with USCIS. Form ETA-750B is a DOL form filed to USCIS that allows the labor certification to be processed with the visa petition.

When filing an EB-2 with National Interest Waiver (NIW) visa petition, the USCIS website references it and links to the Department of Labor’s website, but the actual instructions are buried in 8 CFR 204.5(k)(4)(I):

(ii) Exemption from job offer. The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest. To apply for the exemption, the petitioner must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate, as well as evidence to support the claim that such exemption would be in the national interest.

ETA-750B is a vital form that must be submitted, in duplicate, with any EB-2 with NIW petition.

Where do I get it?

DOL’s website provides a link to the PDF of ETA-750A and ETA-750B, but explains the form in the context of H-2B visas. USCIS and DOL do not provide helpful information about the 8 CFR 204.5(k)(4)(I) requirement that ETA-750B be submitted in duplicate with EB-2 with NIW petitions. In fact, the downloaded form on DOL’s website is not even fillable.

Don’t file your petition without it

You can download a fillable PDF of Form ETA-750B here. It is important to familiarize yourself with DOL’s instructions and the corresponding federal law when filling out each line of this form.

Contact us to help get your EB-2 with NIW petition started or finalize it and prepare it for filing with USCIS.