Murthy Success Story: EB1 Extraordinary Ability Approval after USCIS Denial

As long-time MurthyDotCom and MurthyBulletin readers are aware, approvals in the EB1, extraordinary ability (EA), category are difficult to obtain. The legal standard requires showing that the foreign national has reached the very top of his/her field. This case illustrates some of the additional challenges faced by those applying in this category, due to a current problem with EA adjudications. U.S. Citizenship and Immigration Services (USCIS) adjudicators, in some instances, are going beyond the high standard that is appropriate for the EA category and creating novel, virtually insurmountable requirements.

Our success in obtaining approval of an EA case for a researcher in the field of computer science is shared with our readers through the generosity of this Murthy Law Firm client. Information on all clients and their cases is always kept confidential and no information or detail is shared without explicit, written permission.

The Problem: Heightened Legal Standards

The legal standard in the EA category is very high. While this category was intended to apply to a small group of individuals, it was not meant to be unattainable. There genuinely are individuals who can and should be able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that this extraordinary ability has been demonstrated by sustained national or international acclaim, and that the achievements have been recognized in the field with extensive documentation.

Given the wide discretion the USCIS has in adjudicating these cases, and the complexity of the evidence presented, adjudicators sometimes apply heightened legal standards. These are standards which, essentially, are created by the adjudicator to support a negative decision. Some of these issues can be found in, Murthy Success Story: EB1 / EA Approval for Conductor of Music (26.Feb.2010). In such cases, it can be difficult to challenge the ineligibility finding made by the USCIS. It is necessary to carefully analyze the actual legal criteria, and the application of the criteria by the adjudicator to the often highly complex individual facts.

Extraordinary Ability Petition: Initial Filing

The Murthy Law Firm is selective about taking on and filing EA cases. We review the qualifications of those who are interested in this category to determine, based upon our experience, whether there is a likelihood of success. The applicant in this case had qualifications which, in our opinion, met the EA criteria.

The Murthy Law Firm prepared and filed the EA petition for the individual. Within that petition, we demonstrated, by extensive documentation, that she met five out of the list of ten eligibility criteria. It is only necessary to meet three of the criteria to qualify for approval in this category.

Specifically, the petition claimed eligibility under the following criteria: membership in associations in the field that require outstanding achievements of their members; evidence of published material in professional publications or other media written by others about the client’s work in the field; participation as a judge of the work of others in the field of specialization; evidence of original scientific contributions of major significance in the field; and evidence of authorship of scholarly articles in the field. The case was solid, as it was supported by evidence of multiple articles about the individual’s work in major professional publications, a long list of publications in highly regarded professional journals, several hundred citations, and strong expert opinion letters attesting to the petitioner’s national and international acclaim.

USCIS Issues RFE

The difficulties with this case began with a request for evidence (RFE). Simply receiving an RFE does not always mean that a case has any significant problems. Cases of all types are approved after an RFE has been received, provided there is an appropriate response. However, in this case, the substance of the RFE indicated that the examiner was applying a higher-than-legally-appropriate standard.

The RFE questioned whether the individual met two out of the five claimed and presented criteria. Since the petitioner needed to establish qualification only under three criteria, we argued that the USCIS could not deny the petition because it must provide an opportunity to the petitioner to examine and rebut any deficiencies prior to the denial. That is, since the USCIS did not question eligibility under three of the claimed criteria, it must have determined that the petitioner had met the three required criteria. If so, we at the Murthy Law Firm argued, the EB1 / EA case should be approved. We also provided further evidence, as requested, with regard to the remaining two criteria, as good-faith compliance with the USCIS request.

USCIS Issues Denial and Agrees to Reopen Case

The USCIS denied the EA petition, even though the RFE had not questioned our client’s qualifications under three criteria. Meeting these three criteria, as explained above, should have been sufficient to establish eligibility for approval. The denial was solely based upon the initial submission. It did not address the arguments presented in the RFE response. In the denial, the USCIS misinterpreted the facts of the case and even included some unrelated “facts” apparently taken from some other petition.

In an effort to resolve this matter in the most efficient way, we contacted the service center and requested that the USCIS recognize its clear error and reopen the case on its own. The USCIS agreed to do so. However, it did not agree to approve the case. It indicated in the decision to reopen the case that it would separately issue a notice of intent to deny (NOID) the now reopened case.

USCIS Issues NOID After Reopening Case

As promised, the USCIS reopened the case, and issued a NOID. The NOID stated that, in the USCIS’s opinion, the client met only one of the five claimed requirements. It agreed that the client had documented receipt of national or international awards. It rejected all other claimed eligibility criteria. This rejection was due to the misinterpretation of specific facts and the application of an enhanced legal standard. Essentially, the decision made it seem as if, no matter what qualifications an applicant may have, it would not impress this examiner. Obviously, our client would not have received prestigious awards if she did not have documented accomplishments sufficient for the other claimed criteria.

The Murthy Law Firm prepared a comprehensive response to the NOID. Our legal team identified all factual and legal errors made by the USCIS. We demonstrated that the decision did not comply with the pertinent laws, regulations, case law, and the USCIS’s own guidance.

USCIS Finally Issues EA Approval

As a result of the overwhelming proof and legal arguments submitted in response to the NOID, the USCIS finally approved the EA petition for this deserving individual. Our client was, of course, thrilled to obtain a favorable resolution to her case after a long and difficult adjudication process. We at the Murthy Law Firm were quite pleased with this result, which was a correct and well-earned approval that should have been issued from the outset.

Conclusion

It seems that it has become even more difficult to obtain approval in the EA category. For those few individuals who are truly at the very top of their respective fields, however, the USCIS should apply the correct legal standard and issue appropriate approvals. There are efforts underway to address the creation of novel requirements by examiners in EB1 cases. For foreign nationals who may qualify for EA, it is advisable to present initial evidence in these cases in the most precise and clear way. If the USCIS questions the foreign national’s eligibility and issues an RFE or unfavorable decision, it is important to review the case to determine if the problem is with the individual’s qualifications or with the USCIS’s analysis and standards.

We at the Murthy Law Firm encourage individuals in this situation to consult with an attorney to determine an advisable course of action. Those who do, in fact, qualify should have experienced legal guidance to respond to an RFE or NOID, or even challenge a denial, if appropriate, to follow the case through to a successful resolution. The Murthy Law Firm continues to represent clients who we believe qualify for approval in the EA category. While it has become more difficult, approvals are still possible for those with proper qualifications and the willingness to argue their cases.

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