NIW based I-140’s Remain a Viable Option for H-4 Employment Authorization

In the past few months, we have received a significant increase in I-140 National Interest Waiver (“NIW”) based cases in anticipation of the new rule that allows H-4 dependents to receive employment authorization if the H-1B spouse is the beneficiary of an approved I-140.  With the recent official announcement of the H-4 employment authorization rule, we would like to review the current state of NIW adjudications based on our recent experience.

Based on our recently approved cases, the USCIS appears to be less stringent than they have been in the past regarding NIW approvals as long as the cases are argued intelligently.  We have received approvals not only for Ph.D.’s but also for master degree and bachelor degree holders with cases that did not have the strongest backgrounds.  Below is sampling of some of our most recent approved cases and the strategies we employed to overcome the weaknesses in the case:

Ph.D in Chemistry

This petitioner had 2 publications and 7 citations.  For this case we presented commentary from other scientists regarding the petitioner’s research.  This was convincing enough to overcome the relatively low citation count for this case and the case was approved without an RFE in less than 4 months.

M.S. in Computer Science

This petitioner had 3 publications with 40 citations.  For this case we compared the citation profile of the petitioner against the average Ph.D. holder (the petitioner only had a master degree).  The USCIS found this argument convincing and approved the case without an RFE in less than 5 months.

B.S. in Engineering

This petitioner had 5 publications and 3 citations.  For this case, rather than focusing on the publications, we argued the practical applications of the petitioner’s work.  After receiving an RFE, we received the approval in 8 months.

As the above cases demonstrate, when using the correct arguments, USCIS has been giving approvals for NIW cases that do not necessarily have the strongest backgrounds.  This continuing trend of approvals bodes well for an H-1B holder who is seeking employment authorization for his or her H-4 spouse.


For questions or comment regarding this article, please contact Attorney Fok at: jfok@jclawoffice.com

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