USCIS I-140 EB-1A/ EB-1B Approval and Denial Statistics(3/1/2011)

If you are thinking about submitting an EB-1 or NIW application, you should give serious consideration to trying to participate as a “judge” of the work of others in your field. Participating as a judge in your area of expertise can enormously benefit your chances of successfully applying for EB-1 or NIW classification. For example, the EB-1-2 “Outstanding Professors and Researchers” category requires the satisfaction of two of six enumerated criteria. Similarly, the EB-1-1 “Extraordinary Ability” category requires that a petitioner demonstrate three of ten criteria. For both of these categories, one of the listed criteria is participation as a judge of the work of others in the field. Thus, if you can adequately demonstrate your fulfillment of this criterion, you have essentially satisfied either one-third (for EB-1-2) or three-tenths (for EB-1-1) of the required evidence. Of course, there are other requirements for each category; however, these enumerated criteria present the most significant hurdle for most applicants.

  Participating as a judge of the work of others can also be beneficial to a National Interest Waiver (NIW) applicant. Although the law does not require an NIW applicant to follow specifically listed criteria, a petitioner must establish that his or her continued presence (on a permanent basis) in the United States is in the “national interest.” Evidence of one’s participation as a judge of the work of others does precisely this; it is an achievement that demonstrates you are more accomplished than others in your field and, thus, makes it easier for the USCIS officer to understand why and how you will serve the national interest. Other forms of evidence are obviously also necessary if your application is to be successful. However, participating as a judge of other’s work can serve as very persuasive support.  

  The question remains, however, what exactly is work as a “judge” in your field? While there is no one way to establish this, the remainder of this article will be devoted to explaining two of the more common means of doing so.

  The first way of demonstrating your participation as a judge of the work of others is to serve as a reviewer for a journal in your field. Adequate evidence of this can come in many different forms. It is very important, however, that if your evidence consists of a letter from the journal, the letter be directed specifically to you. In other words, a letter from a journal to your supervisor (asking him or her to review an article) that is subsequently passed on to you will not suffice.

  A second form of evidence of your participation as a “judge” of the work of others is to conduct thesis direction. This is particularly effective when you have been involved in the direction of a Ph.D. thesis. Many applicants do not consider their participation in thesis direction as beneficial to their green card application. This is unfortunate, however, because when you are directing someone’s thesis, you are very actively involved in the “judging” of their work. Your exact means of documenting your work in this capacity, as well as providing the legal authority for this kind of evidence, should be discussed with your attorney.

In conclusion, if the opportunity presents itself to participate in either of these activities (i.e. article review or thesis direction) and you are considering for applying for permanent residency, do not pass up the opportunity. Although the extra work can be somewhat of a burden, the positive effect it can have on your chances of successfully applying for a green card make it well worth the effort. 

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.

For individuals considering an EB-1-1, EB-1-2 or EB-2 National Interest Waiver application, the issue of “membership in associations” is an important one. The right kind of association membership can provide valuable evidence of an individual’s eligibility for any one of these employment-based classifications.

Unfortunately, the immigration regulations provide very little in terms of helping applicants determine how much weight U.S. Citizenship and Immigration Services (“CIS”) will give a membership in a particular association. For example, the EB-1-1 “Extraordinary Ability” classification lists ten primary categories of evidence that CIS will consider in adjudicating these kinds of petitions. The category regarding association memberships states: 

“Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields”

Similarly, the EB-1-2 “Outstanding Professors or Researchers” classification (which only contains six primary categories of evidence) states:

“Documentation of the alien’s membership in associations in the academic field, which require outstanding achievements of their members”

With regards to the National Interest Waiver (“NIW”) category, there are no specifically listed groups of evidence as there are for the above classifications. Nonetheless, it is fair to assume that CIS would be willing to consider evidence of association memberships in an NIW case if the evidence provided meaningful verification of the individual’s ability.

It is clear, therefore, that CIS’ position regarding the evidentiary value of association memberships is an extremely important consideration. In approaching this issue, however, it is actually easier to work backwards. In other words, CIS has been fairly clear about what kinds of association memberships do not constitute meaningful evidence of someone’s ability.

For example, an association that only requires an applicant to pay a membership fee in order to join will clearly not be considered significant evidence by CIS. Similarly, associations that simply require that a person be “involved” or “interested” in the field will also not be considered noteworthy evidence.

The key, therefore, in determining the evidentiary value of a particular membership is the association’s selection criteria. In other words, what the association requires of its membership candidates will be a central consideration. For example, an association that requires membership candidates to have achieved a specified level of recognized accomplishment would likely be considered significant evidence.

It is also important, however, to differentiate between the various membership categories within the association. For example, a “full” membership in a particular association might have significantly higher selection standards than an “associate” or “student” membership in the same organization.

In summary, it is important to establish an association’s selection criteria if an applicant wants CIS to seriously consider their membership as meaningful evidence. Which specific associations constitute good evidence and what kind of documentation needs to be submitted is a case-by-case consideration. If you should have specific questions regarding a particular membership or association, please feel free to contact our office for a free evaluation.