Over the past several years, the state of the U.S. economy and job market has resulted in an exacerbation of the difficulties normally involved in the labor certification process. As a result, an increasing number of people have been seeking permanent residency by means of the National Interest Waiver (NIW) provision of the Immigration and Nationality Act. The benefit of applying for a “green card” via the NIW provision is that an applicant circumvents the often burdensome and lengthy process of attaining labor certification from the Department of Labor. The difficulty, however, is that the law regarding NIWs can be extremely difficult to navigate.

A major part of this difficulty is due to the fact that the law regarding NIWs is often applied differently at the various Service Centers. Thus, an applicant in California, for example, will have a different set of concerns than an applicant in Michigan. The result is that many NIW applicants find their petitions denied. This is especially true in the case of unwary and inexperienced non-attorney self-petitioners.

Generally, NIW petitions fail for one of three reasons:

1. The applicant did not possess the necessary credentials to qualify for an NIW;
2. The applicant did possess the necessary qualifications but did an inadequate job of presenting their case in a way that allowed the Service Center official to fully see the merits of their application; or
3. The Service Center erred in its decision

Obviously, if your petition was denied for the first reason then your only option is to reapply at a later date when your resume and credentials are stronger. However, this office has found that a very considerable percentage of the applications that are denied fall into either the second or third categories. In either of these cases, you should seriously consider the option of appealing the decision.

Along with the denial of your petition you will also usually receive notice of your right to appeal the decision. NIW appeals are typically filed with an office of the Bureau of Citizenship and Immigration Services (BCIS) called the Administrative Appeals Office (AAO). The notice of appeal must be filed within 30 days of the date of the decision. If you receive the decision by mail, you must file the appeal within 33 days of the date of the decision. The deadlines for filing an appeal are very strict and, therefore, if you decide to appeal you must act quickly.

The importance of the appeal for many NIW applicants is that, although both the AAO and Service Center offices are part of the BCIS, the way in which the two interpret the law of NIWs can be dramatically different. The result is that NIW denials at the Service Center level can often be turned into approvals at the AAO level. For example, some Service Centers take an extremely narrow reading of the rules regarding how to prove an applicant’s work is in the “national interest”. Because there is disagreement as to what is the exact definition of “national interest” is, this often gives an applicant a firm basis on which to challenge the Service Center decision.

In conclusion, just because you receive a denial of your application from the Service Center does not mean your case is not approvable. Appealing decisions with the AAO is a very viable, but often unexplored option that NIW petitioners should consider.

Brian Spalter(林伯恩)律師小檔案

(版權所有﹕梁勇律師事務所﹐lianglaw.com)