Inconsistencies Among INS Service Centers on NIW Cases
Posted Nov 20, 1999

In an October 18, 1999 meeting with representatives of the Texas Service Center ("TSC") , members of the American Immigration Lawyers Association (AILA), raised the fact that it appears that the TSC has been issuing requests for additional evidence, or denying NIW cases, because expert opinions are from researchers and scholars who have worked with the NIW beneficiary. TSC responded that they are not allowed to give less weight to opinions from experts who have previously worked with the beneficiary, or who are of the same ethnicity as that of the NIW beneficiary.

Such guidance contrasts sharply with a memo issued earlier this year by the California Service Center (CSC), indicating that experts who knew the beneficiary or who were of the same ethnicity as that of the NIW beneficiary, were somehow inherently less trustworthy.

Though we have not heard from INS Headquarters on this issue, we at The Law Office of Sheela Murthy, P.C. wonder if the policy at TSC reflects a change in the INS's thinking, or a response to the way that agency has been projected in the media. Maybe the INS has a concern that the basis on which RFEs or denials are issued, may actually be considered a violation of the law.

At the same October 18, 1999, meeting, TSC officials stated that their Center issues requests for additional evidence in a staggering 90% of NIW cases!

During our visit on September 27, 1999, to the Vermont Service Center (VSC), we were advised that NIW cases have been separated out and have all been reviewed by a special team. The Team Leader stated that the goal of the review by the team is to ensure uniformity of adjudications, and that only 40 to 50% of cases have been approved. Apparently, the VSC team were pleasantly surprised that in fact, as many cases were approved since they were thinking far fewer applicants would qualify for the NIW waiver.

I was advised that based on the NYSDOT case (discussed in several previous editions of The Law Office of Sheela Murthy Bulletin), particularly the labor certification prong which would require the NIW beneficiary to overcome the national interest inherent in a labor certification, the INS could deny all NIW cases! I pointed out that when Congress enacted the NIW as a special category, the purpose of the law was to create a category where the beneficiary would be waived from the requirement of the labor certification based on the prospective benefit and contributions of the beneficiary, in the national interest, and the law was purposely broad and expansive so that it could be liberally construed. In addition, there could be a potential lawsuit against the INS, particularly by those who applied prior to the NYSDOT case, whose cases were decided after the case and denied, since the INS had retroactively applied the case to existing cases and many of the NIW beneficiaries might not have spent the time or money filing NIW Petitions if they had known in advance of the NYSDOT criteria. The VSC seemed to agree with the issues raised but did not want to discuss them in greater detail! Understandably!