The Current Progress of EB-1 and NIW Petitions
As of late, USCIS has made several attempts to make the application process faster and more efficient. On average, an I-140 application now takes less than four months to process, as reported by the most recent service charts posted on the USCIS website. In addition, on June 29, 2009, USCIS reinstated its premium processing service for I-140 petitioners applying under the categories of EB-1(a), EB-1(b), EB-2 (excluding those applying under a National Interest Waiver), and EB-3. After a petitioner submits his or her application to USCIS, along with an additional $1,000 fee, USCIS becomes obligated to review that particular application within 15 days of receipt. Upon which, USCIS can either approve, deny, or give a request for evidence to the applicant. If USCIS fails to give the applicant notice within 15 days, then the $1,000 fee is credited back. In addition to the aforementioned developments, USCIS also published a set of procedures to follow for applicants making inquiries.
Under the current economic downturn, many U.S. employers are not willing to sponsor employees for an I-140 or PERM. In particular, because mainland Chinese or Indian born applicants are restrained from visa retrogression in the EB-2 category, more and more people have chosen to submit NIW or EB-1 applications. We at Zhang & Associates, P.C. always work on our clients’ cases with the utmost level of quality and professionalism, resulting in a high approval rate and more referrals from our clients. In the first six months of 2009, we took on 30% more NIW and EB-1 cases as compared to the same period in 2008. With USCIS’ improved efficiency, Zhang and Associates, P.C. has received approvals on 128 NIW and EB-1 cases in July and August alone. Seventy-nine of these cases were NIW; the other 49 were EB-1. However, while most of our clients’ cases were approved, some clients’ cases were denied.
One client’s case in particular deserves special attention. For Dr. Wang, a post doctorate, his path to NIW approval has been anything but easy. In September 2006, Dr. Wang contacted Attorney Jerry Zhang for a free consultation.
Dr. Wang’s case was quite comparable to other NIW cases we worked on in the past. To his credit, Dr. Wang has a Ph.D. in genetics and has been working as a postdoctoral researcher for over a year. In addition to that, he has edited two books, is the first author of twelve original publications, has presented his work at international conferences, and has won a nationally esteemed award in his home country. With these credentials, Attorney Jerry Zhang believed that Dr. Wang had a high chance of being approved under this particular category.
One month later, Dr. Wang decided to retain our firm and submit a green card application under a National Interest Waiver (EB-2).
In February of 2007, after preparing the applicable forms, petition letter, and recommendations, our firm submitted Dr. Wang’s application to USCIS for review. Nineteen months later, in September 2008, we received an RFE (request for evidence). Unfortunately, after supplying USCIS with the requested documentation, Dr. Wang’s case was denied in December 2008.
Instead of accepting USCIS’ decision, Dr. Wang decided to take further action, notifying Attorney Jerry Zhang about the unfavorable status of his application. After a second consultation, Attorney Zhang offered to file an appeal and a new NIW petition for Dr. Wang, who decided once again to retain us.
Ten days later, one of our firm’s most experienced attorneys, Victor Bush, helped Dr. Wang file an appeal to USCIS’ Administrative Appeals Office (AAO), one of two governing bodies that have the authority to overturn a denial.
While waiting for the results of the appeal, Attorney Bush also submitted a new NIW petition to USCIS in June of 2009. Two months later, on August 11, 2009, Dr. Wang’s new NIW petition was approved; on August 21, 2009, his appeal was also approved.
Looking at this one case, it is very difficult to discern whether or not the submission of a new NIW petition for Dr. Wang helped to achieve a favorable outcome on his appeal. Furthermore, the variability of USCIS needs to be taken into account. While they have clear standards for measuring applicants in each category, it is solely up to the discretion of each officer to deny, approve, or send a request for evidence. This is further compounded by the fact that no two applicants are exactly the same. So even though immigration officers must follow a rubric to evaluate each applicant, there is still a certain amount of subjectivity involved. In Dr. Wang’s case, one officer decided to deny his NIW application, while another decided to approve it.
More importantly, at any given time, Dr. Wang could have accepted the decision, giving up his hopes of becoming a permanent resident altogether. However, he did not. Here at Zhang and Associates, P.C., we believe that a client should show the two cardinal “P” s: patience and perseverance. If you are willing to be patient throughout this entire process, you will most likely make your American dream come true in the future.
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