The Most Common Mistakes of a NIW Petition

1. The Most Common Mistakes Made by Petitioners

The three most common mistakes made by petitioners are:

(1) excessive supporting documents;

(2) poorly drafted expert reference letters;

(3) inadequately argued presentations in the cover letter.

Most petitioners confuse quantity with quality. As a result, they substitute hundreds of pages of supporting documents for few well crafted supporting exhibits. USCIS examiners have a limited amount of time to review each petition. If they run out of time while going through an excessively lengthy petition, they have to take time away from other petitions. Rather, they will just stop and make a decision based on what they have seen up to that point.

Therefore, expert reference letters must establish three things:

First, they must establish that the person writing the letter is a genuine expert.
Second, the letter must clearly explain how the letter writer came to know the factual information stated in the letter.
Third, the expert must offer an opinion that is relevant to the matter being considered.
2. The Advocacy Is the Most Important Part of a NIW Petition

To avoid the above mistakes, the petitioner should know that advocacy is the most important part of a NIW petition. In this case, advocacy means the way the law and facts are argued in support of the petition. A large number of meritorious cases have been rejected because of poor advocacy, and a large number of marginal cases have been approved because of good advocacy. Since the US Bureau of Citizenship and Immigration Services (USCIS) has not created any checklists, the examiner must be persuaded that the case has merit.

The advocacy is the core of the NIW petition. No matter how well qualified the beneficiary may be, if the case is not persuasively argued, it is not going to be approved. A well argued case explains the attached exhibits and relates the facts to the specific legal requirements articulated in the statute, regulations, legislative history, USCIS policy memos, and prior cases. In the end, the argument makes it clear that the petitioner has put forward a conclusive case for approval.

If the argument is too long and boring, the examiner will lose interest before understanding the merits of the case. If the argument is too short and unconvincing, the examiner will not be persuaded. A successful case strikes the right balance between sufficient detail and argument to establish eligibility, without unnecessary repetition or the inclusion of irrelevant facts or arguments. More than any other types of cases, NIW petitions are won or lost on the strength of the arguments presented.

3. It Is not Enough to List Your Evidence and Expect that the USCIS Examiner Will Approve Your Application

The USCIS has repeatedly stated that the significance of each type of evidence must be evaluated by examiners, which also means that simply providing minimal evidence is not sufficient for a NIW petition approval.

The USCIS examiners have broad discretion to evaluate the evidence. It is not enough to provide basic documentation to satisfy the regulations. An examiner will go through the evidence and decide if it is substantial enough to distinguish you in some way from the rest of your peers. Probably 99% of cases which are denied by the USCIS are denied on subjective grounds. Basically, it is not enough to list your evidence and expect that the examiner will approve your application.

The USCIS has raised the bar higher than before for obtaining NIW classification approval. However, the USCIS’ decisions remain consistent over the past years, and stick clearly to the statute and regulations. It does appear that the National Interest Waiver category may be moving toward a higher standard of review, paralleling similar patterns in EB1-Extraordinary Ability and EB1-Outstanding Ability adjudications.

Specifically, there have been RFEs (Request For Evidence) from USCIS regarding the experience, achievement recognition, and the nature of the position. However, USCIS decisions are firmly grounded in the statute and regulations. Therefore, it is very important for alien applicants to carefully present eligibility and strong evidence for the USCIS Service Center to approve your case.

You can present direct evidence towards a factor or criterion, or you can argue that some of your achievement should be considered as an equivalent or comparable evidence towards the criterion. But most importantly, you should not be afraid to try, and keep in mind that a denied NIW immigration petition will not affect your future other immigration petitions through the same category or in different categories.


Leave a Reply