Unusual Requests for Evidence in NIW Cases
Posted May 13, 2000

In this article in the MurthyBulletin, we wish to share some interesting information and facts on the EB-1 and NIW categories to obtain the "green card." The Immigration and Naturalization Service (INS) presumes that it is in the U.S. national interest for most foreign nationals seeking green cards to undergo labor certification. Labor certification, as many of you may be aware, is a competitive recruitment process, where the U.S. employer demonstrates to the U.S. Department of Labor that the employer has not been able to find a qualified U.S. worker to perform the same job duties as the foreign national. On the other hand, certain advanced degree professionals or those who are considered "exceptional" and who have demonstrated a significant impact on their selected field, may be eligible for the National Interest Waiver (NIW) process.

Recently, the American Immigration Lawyers Association (AILA) observed that there has been a significant increase in denials of NIW cases and is gathering information to submit to the INS. AILA is gathering information to show the INS the unusual language in some of the NIW denials so that the INS can train their officers, when necessary, on the law. Many of these cases would probably have met with success in the past, prior to the NYSDOT case in August 1998, which has been discussed in various editions of the MurthyBulletin.

Typically, before the Immigration and Naturalization Service (INS) issues a denial in any type of case, it first sends a Request for Evidence (RFE). Receipt of an RFE enables the candidate the opportunity to present additional evidence, for a fair and accurate determination. This procedure is in keeping with the purpose of the NIW - to create an avenue to obtain permanent resident status for a candidate who demonstrates that her or his work will substantially benefit the U.S.

In the cases where RFEs are received, the specific requests for documentation have bordered on the bizarre. For example, we recently received an RFE that where the NIW applicant/candidate would have to prove that the applicant could not "eventually" train someone else to do their work. Yet we know that any worker-- even an expert -- can be replaced "eventually." In fact, every person in the world is ultimately and arguably replaceable since one could argue that we do not need any more cutting edge research and we can all survive without any new research or development. Such requests have no connection with the intention of the law underlying National Interest Waivers.
 
Another recent RFE for an NIW that we have seen, requests evidence that the NIW applicant has obtained awards other than academic awards. That is indeed a strange request, because awards are not one of the mandatory criteria for the NIW category and may arguably be useful to show that a person is "extraordinary." In another case, a candidate's salary was deemed questionably low by the INS. And yet, a person's salary is not a criterion for NIW, but rather for the EB-1 "Extraordinary Ability" process. In NIW cases, requests for evidence of high remuneration are inappropriate.

We have also been obtaining evidence that the INS has been issuing denials without RFEs. Especially frustrating was a petition that was summarily denied after waiting for review by INS for over 15 months.

Another unusual fact is that we have just received 3 denials in NIW cases from the very same Service Center that approved EB1 "Extraordinary Ability" Petitions for these same three candidates! The denials of the NIW petitions stated that the clients failed to meet the "exceptional" standard. This appears to fly in the face of reason when the INS admits that the persons satisfied the much higher standard of extraordinary for the EB-1 Petition but could not satisfy the lower "exceptional" standard for the EB-2 Petition. If a candidate potentially qualifies for both NIW and EB-1, it may be worthwhile considering to file in both categories, to improve their chance of success for getting the "green card."