Approval of NIW, EB-1A, and EB-1B Cases in the First Three Quarters of 2013

I. An Overview

In the first three quarters of 2013, LPY Law Group had an aggregate total of three hundred and eighty-six (386) EB-1A, EB-1B, and NIW I-140 cases approved by the USCIS. Among the approved I-140 cases, one hundred and thirty-two (132) were EB-1A, fifty-four (54) were EB-1B, and two hundred (200) were NIW petitions. In the first three quarters of 2013, we had four (4) EB-1A, one (1) EB-1B, and three (3) NIW I-140 cases denied by the USCIS. The three-quarter approval rate is 98% for NIW and EB-1B and 97% for EB-1A. For credentials and background information of the approved EB-1A, EB-1B, and NIW I-140 cases, please see our reports at http://www.niwus.com/Approvals.html.

II. USCIS E-filing System Change and its Effects on I-140 Petitions

In May 2012, USCIS made an unannounced change to its electronic filing (e-filing) system. For many years, e-filed I-140 petitions were processed exclusively by the Texas Service Center (TSC). However, after the change, the USCIS began to route e-filed I-140 petitions to the USCIS service centers based on jurisdiction. Therefore, I-140 petitions are now being sent to the Nebraska Service Center (NSC) if the petitioner is located in states/territories that fall within the NSC jurisdiction. 

This change only affects I-140 cases where petitioners are within the NSC jurisdiction. NSC currently has I-140 jurisdiction over the following states and territories: Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

This change does not affect I-140 cases where petitioners are within the TSC jurisdiction. TSC currently has I-140 jurisdiction over the following states and territories: Alabama, Arkansas, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, South Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia.
 

III. Inconsistency of Adjudicatory Standards between NSC and TSC

Although the USCIS strives for consistency between the two service centers, the NSC historically has had significantly lower I-140 approval rates than the TSC, especially for EB-1 I-140 petitions. This is clearly evidenced by the divergent approval rates between the two service centers. According to a report released in December 2011 by the USCIS Ombudsman’s Office, during the first three quarters of 2011, the TSC reported an EB-1 I-140 approval rate of approximately 75%; during the same period, the NSC reported an EB-1 I-140 approval rate of only about 40%. This indicates that many EB-1 I-140 cases with credentials that have a reasonable chance to be approved by the TSC may only have a slim chance to be approved by the NSC.

Due to this change, if EB-1 I-140 petitioners are located within the NSC jurisdiction, it is recommended that they have a backup plan in case the EB-1 I-140 petition is denied by the NSC. Many EB-1 I-140 petitioners/beneficiaries also file EB-2 petitions based on National Interest Waiver (as self-petitioner) or PERM (sponsored by employer) as a backup. While this may be a matter of choice for applicants under the TSC jurisdiction, it may have become a matter of necessity for many applicants within the NSC jurisdiction.