Recent Appeals in EB1 and NIW Cases
Posted Aug 31, 2001

In this article of the MurthyBulletin we share certain approvals of EB1 Extraordinary Ability (EA) and EB2 National Interest Waiver (NIW) green card cases, where the INS was reversed. The discussion below is based upon cases that were originally denied by the INS and then appealed to the Administrative Appeals Office (AAO) and finally approved. Though these were not cases handled by The Law Office of Sheela Murthy, P.C, they are publicly reported in the legal literature and we take the opportunity to share our synopsis on these cases with you.

A lack of reference letters from independent experts is commonly a ground for denial, according to the INS. Independent experts are defined as people who either do not know the beneficiary / applicant personally or have never worked with the applicant. Letters from professors who supervised the person's work or from colleagues are considered weaker pieces of evidence in the eyes of the INS. However, several cases that were denied by the INS due to the fact that the reference letters came only from those who worked with the respective applicants were subsequently approved by the AAO. In reversing the INS, the AAO stated, in one case, “the letters did show that the petitioner had a significant impact beyond her collaborators and professors." And stating in another case, “although the petitioner did not have much documentation from third parties, he did have evidence that he had collaborated with experts in highly renowned institutions."

So it is evident that, what all along should be the crux of the issue in an EA or NIW case, namely, the actual content of the letters, appears finally to be given greater importance by the AAO. The issue of whether the reference letter writer personally knows the applicant / beneficiary appears no longer to be the main issue for the AAO, as explained in these decisions. In another case, this time an EA petition, the AAO stated, “the weaknesses didn’t undermine the strong pillars of the petitioner’s claim of eligibility.” Clearly, much depends upon the unique features of each case.

Many National Interest Waiver cases are denied by adjudicators due to a lack of evidence proving the significant impact of the petitioner’s work in a given field. One such case was denied due to a small number of citations of the researcher’s work. The AAO overturned the decision stating, “While there were few citations to the petitioner’s work, it was because his work was too recent to have numerous citations.” In this particular case, it was the evidence from independent experts who provided solid evidence that the petitioner’s work was indeed having an impact on the field.

While it is a comfort to know that a denied case may possibly have a good chance of being overturned, it is important to note that awaiting the decision on an appeal can take double the time of normal adjudication for I-140 cases. Therefore people may instead opt to re-file the petition. In addition, the critical nature of independent expert letters for Extraordinary Ability, Outstanding Researcher, and National Interest Waiver petitions cannot be overstated. These letters are a strong indicator of the petitioner’s impact on the field, and are viewed as convincing evidence to the INS. It is always highly recommended one obtain as many independent expert letters as possible. It is clear in the above cases that both the source and content of the reference letters are often deciding factors in the adjudication process.

The above approvals should provide hope to those individuals who have had their EA or NIW petitions denied by the INS. It is important to remember that a denial is not necessarily the final word from the INS, as an encouraging percentage of denials now appear to be successfully overturned on appeal at the AAO. The Law Office of Sheela Murthy has been largely successful with our EA and NIW cases filed with the INS -- even with the few appeals we have had the opportunity to work on with the AAO.