The Situation
My client was a literary-studies scholar, in the United States with her children and hoping to stay. She had a strong EB-1A. She also had a strong EB-2 NIW. What she did not have was risk tolerance. Hers was close to zero. I had to get her the green card with little or no friction.
She had written a literary-studies textbook that was required reading at her country’s universities. She had written several books that had received attention from mainstream press and academia. She was at the very top of her field. So the question was never which category was strongest. It was how to put the case on more than one track at once, every train bound for the same green card. How to keep each one moving so that none waited on another. How to work the switches so that nothing collided and the case arrived whole.
More Than One Track
Back then premium processing was not available for EB-2 NIW and those cases tended to move slowly. An EB-1A case could be premium processed, but we had some time to wait, so I decided we could always hop on that express later.
I filed the surest case first: an EB-2 petition for an advanced-degree professional seeking a national interest waiver. INA § 203(b)(2)(B)(i). At the time the waiver was governed by Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), since superseded by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Then I waited.
When the decision did not come in time, I filed her adjustment of status and, concurrent with it, a second National Interest Waiver, identical to the first. Another train on another track. Then I waited again.
However You Draw the Field
Several months in, the first petition drew a request for evidence, and it read almost as a compliment. The examiner accepted two of the three prongs and pressed only the third. The objection, underneath its form, was that I had done the job too well. I had drawn the client’s field of endeavor so narrowly, and propped the definition up with expert opinion so thoroughly, that on the record there was scarcely anyone in the field but her. Widen the field, the examiner said, and show the national interest there.
My answer was that the width of the field made no difference. Draw it narrowly and the client is very nearly the whole of it. Draw it broadly and she still stands at the top. Either way the achievement is the same. To close the argument, I tracked down the only other scholar in the U.S. of comparable standing and asked her to put her opinion in writing. She did. She was nearing retirement, she wrote, and she knew of no one else at the client’s level.
An Essay About a Book No One Had Read
Still nothing moved fast enough. So I hopped on the express, and filed the EB-1A on premium processing.
The EB-1A came back with a request for evidence of its own, and in this one the examiner had not read the record. The RFE appeared to have been contrived to stop the premium processing clock. The petition argued three of the ten criteria for extraordinary ability. The examiner granted one, the authorship of scholarly articles, and pressed the other two. On the published material about my client, the examiner wrote:
“This criterion has not been met because the evidence does not indicate that the published material was material that related to the beneficiary and the beneficiary’s work in the field.”
The record contained interviews with my client in major national newspapers; discussion of her work in academia; reviews of her books in the media. To issue the request without reading it, I wrote, was like writing an essay about a book one had not read. My RFE response was: read the record.
USCIS likes to remind petitioners that the assertions of counsel are not evidence. Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). I asked the agency to hold itself to the same standard: a finding of insufficiency that points to none of the evidence is the kind of groundless assertion these authorities guard against.
The Result
The first National Interest Waiver, the one I had filed at the outset, was approved just under nine months after filing, five days after the EB-1A went in. A client with multiple approved petitions is entitled to the earliest priority date, under 8 C.F.R. § 204.5(e), but still needs to decide which petition to use to adjust status. See USCIS Policy Manual, Volume 7, Part A, Chapter 8. So I asked USCIS to substitute the approved NIW petition for the identical petition filed with the adjustment of status, and, at the agency’s request, withdrew the pending duplicate.
The premium-processed EB-1A was approved in about three months, request for evidence and all.
USCIS approved the adjustment of status, and the green card was issued.
Acting on the withdrawal that USCIS had asked me to file took the agency nearly seven months, almost as long as it had taken to win the waiver.