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

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.