NSC Acting Director Answers Questions on NIW and H-1B

Recently,at the American Immigration Lawyers Association (AILA) NorthwestRegional Immigration Law Conference, 
the NSC Acting Director Gregory W. Christian  answered many questions raised by AILA members. Here are the questions and answers:

1. If an H-1B petitioner asks for a certain period of time (based on the “recapture” of time outside the country) but the Service did not see the evidence or felt that the evidence of “recapture-able” time was insufficient, should it have issued an RFE or just issued the approval for the period of time it felt was demonstrated by the evidence (i.e., without issuing an RFE). Of course, this could be generalized to other issues, too.

A: In accordance with the HQ policy memo we do not RFE on recapture issues. The burden is on the petitioner to provide clear evidence to support any assertions made. If the petition is otherwise approvable, an approval will be issued for the period of time demonstrated by the evidence submitted.

2. The I-140 form has a place for CIS itself to check Schedule A, Group II, but there is no place for the petitioner to check that box, so which box is the petitioner to check for these cases? There is a “members of the professions/exceptional ability” box, but that “exceptional ability” is different from Schedule A, Group II “exceptional ability.”

A: In the situation where the applicant is applying under schedule A it is recommended that a cover letter be submitted with the I140 indicating that a schedule A occupation is requested.

3. The Yates Memo on “ability to pay” seems to indicate that the three scenarios listed are meant to be obviously approvable cases (i.e., so obvious that not even an RFE should be issued), but the NSC seems to treat these as the only tests capable of proving ability to pay. That is, NSC appears to insist on denying the I-140 if the petitioner does not meet one of the tests, but the wording of the memo seems to indicate only that those scenarios are completely obvious and don’t warrant an RFE. For example, we had a case in which the denial included a CIS-created table showing that the company’s bank statements reflected monthly cash balances of more than $90,000 for a position with a proffered salary of only $45,000, and the alien was being paid about $44,000 at the time of I-140 filing.

A: On Page 3 of the same memorandum, it was explained that if required initial evidence has been submitted but fails to establish ability to pay, USCIS adjudicators are not required to accept, request, or RFE for additional financial evidence. If additional financial evidence is submitted but does not clearly establish the petitioner’s ability to pay, the USCIS adjudicator may deny the petition and not RFE for additional evidence to further clarify the discretionary evidence that was accepted.

4. What exactly is the third-prong test in national interest waiver cases?

A: For purposes of submitting and reviewing evidence, Service guidance regarding the final threshold in Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998) is:
“…The Service here does not seek a quantified threshold of experience or education, but rather a past history of demonstrable achievement with some degree of influence on the field as a whole.” 22 I&N at 219, note 6.
“Because, by statute, “exceptional ability” is not by itself sufficient cause for a national interest waiver, the benefit which the alien presents to his or her field of endeavor must greatly exceed the “achievements and significant contributions” contemplated in the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F).” 22 I&N at 218.
(8 C.F.R. § 204.5(k)(3)(ii)(F) defines one of the criteria used to demonstrate “exceptional ability”: “Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.”)
Accordingly, petitioners seeking the national interest waiver should present documentary evidence relating to achievement, influence in the field and, if applicable, evidence of recognition as set out in 8 C.F.R. § 204.5(k)(3)(ii)(F).

5. The Service Center says one thing, but the AAO always says something else. For example, in national interest waiver cases, some CIS examiners have denied cases stating that the beneficiary did not prove that the national interest would be “adversely affected” if a labor certification were required, but the AAO never uses that language in its opinions.

A: The precedent decision states, “The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.” 22 I&N at 217. Probably for that reason many petitioners seeking the waiver assert the national interest would be adversely affected if the waiver were not granted. When a petition is approved it is because the evidence is persuasive on this point. If a petition is denied, the adjudicator would normally be correct in addressing the point, both because it was argued by the petitioner and because it was used by the AAO in the precedent decision.

6. Some examiners imply that if the person has H-1B status, he or she is eligible for ongoing research anyway, and therefore the national interest would not be “adversely affected” by requiring a labor certification instead. This kind of analysis, however, appears nowhere in AAO opinions. In addition, the same statements could be made about a Nobel Prize winner in H-1B status – i.e., the national interest would not be “adversely affected” by requiring a labor certification, because the Nobel Prize winner could continue on in H-1B status, too.

A: If the evidence presents “a history of demonstrable achievement with a degree of influence on the field as whole,” and assuming the underlying visa requirements and prongs one and two are also satisfied, the waiver is warranted regardless of the alien’s nonimmigrant status.
From time to time, researcher petitioners assert labor certification is inappropriate or unavailable, and from there contend the national interest would be adversely affected if the immigrant petition is not approved. In the precedent decision, the Service determined that “inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiver,” even for “certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification.” 22 I&N at 218, note 3.

Because researchers typically have university or laboratory employers, an adjudicator would not be in error if s/he were not to give the assertion significant weight. Also, it would not be incorrect for an adjudicator to address the claim by noting there is no automatic bar to the alien’s services (whether by way of labor certification, extension of any current H-1B status, or potential change to H-1B or J nonimmigrant status). Contrary to the claim presented in the question, this analysis also appears in AAO decisions.

7. Please ask them to explain the relationship among EB-1A, EB-1B, and NIW. It seems that NSC does not recognize the great difference between EB-1A and NIW.

A: Each benefit is to be adjudicated under its own statute, regulation and case law. To illustrate, for petitions seeking alien of extraordinary ability classification, adjudicators should refer to Matter of Price, 20 I&N 953 (Assoc. Comm. Exams 1994)(reaffirming “Congress’ intent to reserve this category to ‘that small percentage of individuals who have risen to the very top of their field of endeavor’”) and Matter of Chawathe (USCIS Adopted Decision January 11, 2006) note 6 (reaffirming that “that specific objective evidence be submitted to demonstrate eligibility”), whereas in petitions involving a request for the national interest waiver, adjudicators should rely on Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998).

8. Please verify again when duplicate petitions are required on I-129 petitions.

A: Whenever an alien will be applying at a consulate or POE and we need to send a duplicate copy. As a courtesy, we would appreciate being sent a duplicate of the actual petition and supplement in all cases, but duplicate copies the supporting evidence are not needed. In the event classification is approved but the COS or EOS request is denied, we would need to send a copy abroad.

9. When there are a number of attorneys in a firm, must the G-28 be signed by all attorneys or only the one filing the case? As long as the firm name is mentioned, can all attorneys at the firm discuss the case? Can the signature of the attorney be a copy or must it be original.

A: The attorney signing the G-28 is the attorney with whom we correspond. The applicant or petitioner signature must be original. We will accept a rubber stamp or mechanically produced signature for the attorney.

10. If an I-130 IR is received in your office, is it immediately transferred to California?

A: Yes.

11. Why, when the primary beneficiary files the I-140/I-485 concurrently and the spouse enters at a later date and his/her I-485 is interfiled, does CIS transfer the case to the local district office? The local office has no idea why it is being done and all the information NSC needs for the determination, such as a marriage certificate and the person’s passport and birth certificate is submitted with the interfiled case.

A: The NSC does not summarily relocate EB485 cases as indicated in the above scenario. The NSC generally relocates EB485 cases on a case-by-case basis applying the national EB485 SOP standards. Some of the case considerations outlined in the national SOP are:

  • A need for validation of identity;
  • A need for validation of legal status;
  • Questionable admissibility and /or qualifications;
  • Apparent fraud;• A second filing;
  • An applicant with fingerprint results rejected twice;
  • An applicant medical condition class A or B;
  • The A-file cannot be located at the time of adjudication

An officer may choose to modify the interview-waiver criteria based upon articulable case aspects, in response to developing local circumstances, or regional concerns. Cases that involve recent marriages may be one of the areas in which NSC adjudicators may deviate from the interview waiver criteria; however, these assessments are made on a case-by-case basis, based upon the individual case’s facts and the evidence of record.

12. Our office filed a TN application at the NSC requesting notification of the approval be sent to the consulate (aka: loose TN). Our client was then going to present the TN approval notice at the port of entry instead of having the TN adjudicated at the border. In December 2005, our office received a denial of the Nonimmigrant Worker Petition and the NSC denial letter cited Title 8, Code of Federal Regulations, Section 214.6(e) and have quoted the pertinent section to read as follows:

Application for admission. A citizen of Canada seeking admission under this section shall make application for admission with an immigration officer at a United States Class A port of entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station. No prior petition, labor certification, or prior approval shall be required ……

However, Section 214.6(e) does not state the above referenced language, nor could we locate any other section under 214.6 that reflects the above cited language. It remains unclear to us whether our petition was denied in error, or whether it reflects a change in the Service Center’s policy with regards to adjudications of TN petitions requiring consular notification. As this is a very significant deviation from prior practice and therefore of significant concern to our client, we request that NSC provide clarification as to the basis for this denial. Thank you.

The regulation quoted in the denial you received was taken from an old copy of the 8 CFR and is no longer in that format in the current regulations. However, the regulation is still in effect. The NSC has jurisdiction to adjudicate extensions of TN status and changes to TN status from another valid nonimmigrant status. We do not have jurisdiction or authority to adjudicate a petition for initial TN status. Application for initial admission in TN status must be made at a US Class A port-of-entry, a US airport handling international traffic, or a US pre-clearance/pre-flight station. Based upon the information provided, the petition in question was for new employment for a person currently outside the US. The NSC does not now, and has not previously, processed any TN petitions for Canadian Citizens who are not already in the US in a valid nonimmigrant status.

13. What is the criteria and procedure for requesting an expedited re-entry permit application? In the past, NSC has accepted and approved expedite requests but we would like to know the current criteria/procedure as well as the timeframe for the expedite.

A: I-131 expedite requests are handled in one of two ways. You may request the expedite at the time of filing. Clearly and boldly mark the case as “expedite requested” and attach a reason for the request. Simply asking for an expedite without giving an explanation will not result in the case being expedited. Expedite criteria include severe financial loss, extreme emergent situations, humanitarian situations, Service error, compelling interest of the Service, a request originating from a U.S. Government entity, or a request originating from a non-profit organization in furtherance of the cultural and social interest of the United States.

You may also request that an already-filed application be expedited. You may submit such a request by mail, clearly and boldly marking the correspondence as an expedite request and giving a reason. As an alternative, you may FAX the request to 402-219-6170 or 402-219-6171. Again, clearly request an expedite and give a reason for it.
For I-131s that are expedited, the turn-around time is 7 to 14 days if no additional information is needed. It is very important to submit a complete application at filing with passport-style photos (non-digital), proof of status, proof of identity (facial features should be clearly recognizable), and the appropriate filing fee. If requesting delivery of the travel document by UPS, FedEx or other service, include a prepaid, preaddressed mailer.

You can request expeditious handling for other form types in the same manner unless the petition is eligible for premium processing.

14. How do the Service Centers handle rider I-765 petitions for spouses of Ls. There are liaison notes suggesting it is preferred that these be filed this way, presumably because of the relationship of the petitions (that is, if the L renewal is denied, so is the I-539 and I-765). However, I've had mixed experiences doing this. E.g. Recently I filed with California this way and the EAD petition was first returned to me, then accepted but forwarded to Nebraska.

A: We have found it most efficient to have the I-765 filed with the I-129 and I-539 so all can be adjudicated together. The example you reference refers to an application filed with the CSC – we cannot comment on the practices in place at that office.

15. Is the I-140 line of the NSC acknowledging the Grace Church case (Nov. 2005 Fed. Dist. Ct., Portland, OR) as persuasive for EB(3) equivalency cases? The case says that the USCIS must consider the qualifications of the foreign national under both professional and skilled worker and also that the employer and DOL have more authority in interpreting what is equivalent in terms of degree equivalency as stated on a labor certification application. The appeal filed by the Service in this case has been dismissed.

A: We do consider applicants under both the professional and skilled worker categories. What happens most often is that the labor certification specifies that the alien must have a bachelor’s degree or “equivalent.” Equivalent is interpreted to mean a single foreign degree that is equivalent to a US bachelor’s degree. If the beneficiary does not meet the degree requirement as outlined in the labor certification form, the petition is not approvable as either professional or skilled worker. This is because the alien does not meet the minimum qualifications as stated in the labor certification, i.e., a bachelor’s degree. If the labor certification stated the requirement of a bachelor's degree, but also stated in block 15 that the employer would be willing to accept certain training, experience, and/or education in lieu of the bachelor's degree requirement, it could potentially support a petition for a skilled worker.

With regard to the Grace Church decision, the NSC is not following the finding by the court. In essence, in concluding that USCIS has no role in interpreting the requirements listed on the labor certification in the visa approval process, the court in this decision held that DOL, not USCIS, makes the final determination of whether a beneficiary’s qualifications meet the requirements of the labor certification. This is contrary to 8 U.S.C. 1154(b) and to precedent 9th Circuit case law. See K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); Black Const. Corp. v. I.N.S., 746 F.2d 503 (9th Cir. (Guam)1984). In these cases, the Circuit Court states that USCIS is the final authority on that issue. Implicit in determining whether an alien meets the requirements, is determining what those requirements are.

16. Beginning April 1, 2006, when we begin filing H-1B Petitions for a start date of 10/01, will the numbers be reserved upon receipt of the petition, or when it is adjudicated.

A: Guidelines and instructions for FY07 cap cases will be issued by headquarters.

17. If we have cases that are unadjudicated 30 days or more after you receive our response to RFE, what can we do to obtain a decision?

A: Please use normal inquiry channels on cases of this nature, that is, contact the National Customer Service Center. Be sure to tell the customer service rep that 30 days have expired since the Center received the RFE response. The NCSC practice is to refer the inquiry to us.

18. If all evidence presented, including the cover letter, with a petition reveals that a box was incorrectly checked on the I-129, [e.g. all evidence supports an extension of stay for a successive petition, but the notify consulate box is accidentally checked] it would be appreciated if your examiner would telephone the attorney to clarify, rather than err in the adjudication, due to one erroneously-checked box.

A: The form is the guiding document guiding document. It would not be an officer error to adjudicate an I-129 based on what the petitioner and counsel marked on the I-129. That said, however, the NSC does encourage officers to seek clarification if everything in the file appears to belie what is checked on the form. The NSC encourages practitioners to supply their e-mail addresses with their filings to facilitate this contact.

19. If all evidence presented reveals an attorney is representing the petitioner, including signature of the cover letter on letterhead paper, on the filing fee check, signature on the petition papers, etc, but the G-28 is inadvertently unsigned in the attorney box, could you examiner please call the attorney rather than ignoring the presence of the attorney and sending correspondence to the petitioner. 

A: In the absence of a properly-executed G-28, we are required to correspond with the applicant or petitioner. Per regulations at 8 CFR 103.2(a)(3) “where a notice of representation is submitted that is not properly signed, the application or petition will be processed as if the notice had not been submitted.”

20. How do you want us to handle appeals/motions for reconsider under 8 CFR § 103.3 (a) (2) (iii) and § 103.5 (a) (8)? Is a particular form required, or may we advise you in our letter that we wish for you to first consider the matter as a reopening/reconsideration and then, an appeal to the AAO? Is one filing fee sufficient for both?

A: For appealable cases, an appeal must be submitted on an appeal form. There is only one fee for an appeal. The appeal is treated as though it were a motion to reopen/reconsider. Should the reviewing officer find that the appeal overcomes the denial, he/she will reopen the case and approve. If not, the appeal will be forwarded to the AAO.

21. If an appeal is filed, does the same examiner who denied the case review it again or does someone other examiner review it before forwarding it to AAO?

A: Yes, the original deciding officer reviews the appeal; however it is reviewed by a supervisor before being sent to the AAO.

22. My understanding is that the examiner can issue an RFE without supervisory review, but cannot deny without supervisory review. Is that true? Please explain. Thanks.

A: Regulation requires supervisory review of most denials; however there is no such requirement for RFEs. Supervisory review of RFEs would place an unmanageable burden on the Center.

As we know, since April 1, all the I-140 forms should be submitted to Nebraska Service Center (NSC). We hope that, with the NSC Acting Director Gregory W. Christian’s answers, all NIW and EB-1 cases will be processed smoother than before.

Zhang & Associates, P. C., with eleven experienced attorneys and more than ten supporting staff, has offices in Houston, Chicago and New York. The three offices are under adjudication of three service centers respectively. Specifically, Chicago is under adjudication of Nebraska Service Center and Houston is under adjudication of Texas Service center. We successfully filed thousands of NIW and EB-1 cases in these two service centers. Moreover, we are fully adopting Siebel CRM software to improve our custom service quality, just as USCIS does. Therefore, we are well positioned to continue to deliver the best values to our current and potential clients after the new procedures go into effect.  


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