LPY Law Group Wins National Interest Waiver (NIW) I-140 Cases on Appeal

In recent years, LPY Law Group have had hundreds of National Interest Waiver (NIW) cases approved by USCIS. The majority of cases were approved directly; a small percentage of cases were approved after USCIS requested for additional evidence and the USCIS request was properly responded to. Occasionally, however, a small number of cases were denied by USCIS for apparently illegitimate reasons.

When a National Interest Waiver petition is erroneously denied by USCIS, the petitioner/beneficiary can appeal the denial to the Administrative Appeals Office (AAO) within 30 days of the denial date. The legal standards for a National Interest Waiver as set out in Matter of New York State Dept. of Transportation (NYDOT) are: (1) that the alien seeks employment in an area of substantial intrinsic merit; (2) that the proposed benefit will be national in scope; and (3) that the national interest would be adversely affected if a labor certification were required. Under the current procedure, USCIS will first treat the appeal as a motion to re-open and re-consider. Instead of forwarding the appeal to AAO, USCIS may re-open the denied case and approve it. If USCIS refuses to re-open the case, then it will forward the appeal to AAO, and AAO will make a decision to sustain or to dismiss the appeal. If the appeal is sustained, then the case will be approved. In recent years, we have been successful in representing NIW clients before AAO. Upon appeal, some erroneously denied NIW cases we filed were re-opened and approved by USCIS. A few appeals that were forwarded to AAO by USCIS were sustained and the cases were approved by AAO.

Here are two recent AAO decisions that sustained our NIW appeals. Both of these cases shared a central issue of contention, and both suffered from mistakes of law made by the USCIS.

In the first case, on October 14, 2015, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group and approved the NIW I-140 petition that was originally denied by the USCIS Texas Service Center.

The NIW I-140 petition was originally filed with USCIS in March 2014. The petitioner/beneficiary was a chemist seeking a National Interest Waiver as a member of the professions holding an advanced degree or an alien of exceptional ability. To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met the three prongs for a NIW set out in NYDOT. This evidence included, but was not limited to, 8 co-authored scholarly articles, evidence of the high quality of the journals in which he was published, a record of 102 citations, and letters from independent researchers and former supervisors attesting to the significance of his work.

In September 2014, USCIS issued a Request for Evidence (RFE). In the RFE, the TSC acknowledged that the petitioner’s work is of substantial intrinsic merit and that the petitioner’s proposed employment is national in scope. However, TSC contended whether the petitioner had established that a waiver of the job offer requirement, and thus a labor certification, was in the national interest. Despite the evidence provided in response to the RFE, this issue of “whether the proposed employment would specifically benefit the national interest of the United States to a substantially greater degree than a similarly qualified U.S. worker” remained when USCIS denied the petition in February 2015.

In review of the USCIS decision, we found that it contains both mistakes of law and mistakes of fact. Under 8 CFR §103.3(a)(2), the petitioner can appeal a USCIS decision before AAO within 30 days after the final decision was made by USCIS. The petitioner/beneficiary decided to bring the case to AAO. The appeal involved a number of legal issues and factual disputes.

As a matter of law, an I-140 immigration proceeding follows the “preponderance of the evidence” standard of proof. This means that if the petitioner/beneficiary's claim is “probably true” or “more likely than not,” then the burden of proof would be satisfied. In its decision, however, USCIS alleged that the petitioner “failed to demonstrate the waiver of the requirement for a job offer and labor certification would be in the national interest of the United States.” On the appeal, we pointed out that while the petitioner/beneficiary has the burden of proof in providing evidence showing eligibility, the standard of proof in terms of documentary evidence as required and imposed by law should be “probative” evidence, not “clear” evidence. There is a distinct difference between burden of proof and standard of proof. Given the incorrect application of the standard of proof, there is material error in the USCIS decision.

In this case, TSC incorrectly applied the standard for determining whether a NIW is warranted as established by the AA Unit in NYDOT. That is, TSC appears to have based its decision solely on the third element of whether the national interest will be adversely affected if a labor certification were required. The key to proving this third element is to establish the petitioner’s past record of achievements, which was clearly done in the original petition and further in the RFE response(s) yet overlooked by the TSC.

For example, in the appeal, we pointed out that the TSC alleged the petitioner did not offer evidence that the “frequency of number of his publications is unusual in the field,” but this is not the correct standard for a NIW. According to NYDOT, the petitioner must show a past record of demonstrable prior achievement—not an “unusual” record of past accomplishments. In a similar vein, when we provided updated citation reports in the RFE, the TSC disregarded the updated citation record, stating “USCIS cannot consider evidence of the beneficiary’s eligibility which post-dates the filing of Form I-140.” Contrary to this assertion, a decision from the AAO had plainly stated that citations of a published work, submitted in the original petition, should be considered and that when a “cited research work took place prior to the filing date . . . it is appropriate to conclude that the petitioner had already undertaken and published high-impact work before the filing date. The subsequence citations and references to the petitioner’s work do not alter the importance of that work; they merely document it.”

Of note is another flawed assumption raised by the TSC, in which they alleged “the petitioner has not established that the beneficiary stands apart from others in the field.” As we pointed out in the appeal, nowhere in the regulations or applicable authorities for a NIW is this type of reasoning articulated.

In our second case, quite similar to the first, the AAO again sustained an appeal filed by LPY Law Group and approved the NIW I-140 petition that was originally denied by the USCIS Texas Service Center. The NIW I-140 petition was originally filed with USCIS in May 2013. The petitioner/beneficiary was a chemist seeking a National Interest Waiver as a member of the professions holding an advanced degree or an alien of exceptional ability. To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met the three prongs for a NIW set out in NYDOT. This evidence included, but was not limited to, 12 co-authored scholarly articles, evidence of the high quality of the journals in which he was published, a record of 105 citations, and letters from independent researchers and former supervisors attesting to the significance of his work.

An RFE was issued in November 2013. After the response submitted for the first RFE, a second RFE was issued in December 2013, to which we responded again and from which we then sent an inquiry email to SCOPS. Notably, USCIS never responded to the inquiry email. On July 2, 2014, the petition was denied. When we filed an appeal to TSC, it was transferred to AAO, which also issued two RFEs, one in March 2015 and one in June 2015, before sustaining the appeal.

As in the case discussed above, the issue of contention was “whether or not the national interest would be adversely affected if a labor certification were required of the beneficiary.” Again, in this case, the multiple RFEs exhibited mistakes of law. For example, in the second RFE, it was stated that the “exceptional ability” standard should apply to aliens seeking to qualify as a member of the professions holding an advanced degree. Based on the statutory language set forth in 8 CFR 204.5(k), in addition to the guidelines listed under the Adjudicator’s Field Manual, this is incorrect. The statute clearly states that an alien may qualify as “a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business.” Similarly, the Adjudicator’s Field Manual details how to apply the statutory language under each different standard. Multiple AAO decisions have followed this legal reasoning as well.

Likewise, another RFE suggested “it would be a step to say that research by itself, without wide-spread recognition and implementation of those findings by major hospitals and top chemical laboratories in the U.S., is outstanding to such an extent that a national interest waiver is justified.” It was also stated that “it is debatable if 105 citations would be considered an above-average count for that field.” Neither is the correct standard set by NYDOT, a binding rule of decision. In NYDOT, it was said that “the petitioner . . . must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” The beneficiary is compared to those of minimum qualifications, not those of average qualifications, and is not required to have wide-spread recognition by top institutions. Based on past decisions at NSC and TSC, similar citation record have been accepted as evidence of beneficiary’s past record of specific prior achievements with some degree of influence on the field as a whole.

In light of the above, in both cases the AAO recognized the value of the recommendation letters, citation records, and documentation regarding the specific journals through which the petitioner disseminated his research findings, stating this evidence “provide[s] persuasive evidence that the Petitioner’s [contributions] have been considered significant and influential in his field.” AAO asserted that this evidence was “sufficient to demonstrate that his research has had a degree of influence on the field” and “therefore find that the record justifies projection that the Petitioner will serve the national interest to a significantly greater degree than would an available U.S. worker having the same minimum qualifications. Accordingly, AAO sustained the appeals and approved the cases.

In recent years, USCIS has made good efforts to improve its adjudication of I-140 petitions. The majority of NIW I-140 cases we filed were adjudicated properly and approved with or without requesting for additional evidence. However, from time to time, we have received USCIS decisions that are arbitrary and contain material mistakes of law and/or facts. When this happens, the petitioner/beneficiary has two options: appeal the case before AAO or file a new petition in the same classification. Which option is better is not always immediately apparent – as in many cases, a seemingly simple question may demand sophisticated answers.