AAO Overturns Several INS Denials of NIWs and EAs
Posted Sep 11, 2000

Several recent National Interest Waiver (NIW) decisions by the INS Administrative Appeals Office (AAO) imply that INS Service Centers might have imposed the heightened criteria under the New York State Department of Transportation (NYSDOT) case more strictly than the AAO had originally intended when it issued the NYSDOT decision.

As many readers are aware, the NIW is one of the special categories for persons of high achievement to qualify for U.S. permanent residence. Several articles in previous issues of the MurthyBulletin, as well as at <http://www.murthy.com/niw.html> have discussed the NIW category. Some of these have focused in detail on the August 1998 NYSDOT decision, and the new, more stringent, criteria that that decision imposed in actual practice. From time to time we have also posted summaries of successful cases handled by our Office.

As a result of NYSDOT, INS Service Centers have issued a great many denials and Requests for Evidence (RFEs), demanding answers to questions as to why a labor certification cannot be filed for the NIW applicant. They have also requested evidence demonstrating that another person with the same or similar skills could not perform the work of the NIW applicant. While the Law Office of Sheela Murthy, P.C. has continued to receive many approvals in NIW cases, the task in preparing such a case has become more difficult because of unrealistic RFEs in the wake of the NYSDOT decision.

Recent NIW applicants may find encouragement in some of the recent AAO approvals of NIWs in cases that had previously been denied by the INS Service Centers. Consider the example of a researcher at the prestigious Salk Institute. One of the reasons for the INS denial of the NIW petition was that the employer did not file for labor certification. The AAO overturned the denial and approved the NIW petition on appeal, because the AAO believed that the Service Center did not sufficiently consider the importance of the researcher's work. Moreover, the AAO commented that the law does not require that one first pursue labor certification before filing the NIW petition.

Several other AAO decisions show that INS Service Centers often do not review the evidence thoroughly. For example, one denial was based on the assertion that the reference letters for the NIW applicant were only from people who had a direct connection to the person, and thus did not show her findings in the field of biology to be of major significance to the field. The AAO noted that the letters were not from employers and co-workers, but were from leading authorities around the world. The evidence also showed that the candidate played a leading role in several important projects.

In another appeal, for an economist who specialized in improving the productivity and competitiveness of U.S. companies, the AAO stated that the INS Service Center denial barely discussed the person's work. The AAO found that the impact of her work substantially exceeded that of similar professionals.

In yet another case, this time for the extraordinary ability (EA) category rather than NIW, the candidate showed that he had attained membership in various organizations that were limited to internationally renowned scientists. Nonetheless, the INS denied the NIW petition because the NIW applicant did not appear to be at the very top of his field -- the key criterion for extraordinary ability. The AAO reversed the denial and approved the EA petition. In approving the EA petition, the AAO commented that a person could not earn such a high rank in these elite organizations without being at the top of his field.

Readers who would like the attorneys at The Law Office of Sheela Murthy, P.C. to evaluate your qualifications for the special Green Card categories are welcome to visit our WebSite, which has an evaluation questionnaire <http://www.murthy.com/niwinf.html> that can be automatically eMailed to our special category Green Card department. We will be pleased and honored to review your background and provide useful information. The NIW and EA categories are especially attractive, because both do not need a job offer and can be self petitioned.