Turning a Strong NIW case into a Successful EB-1A Case

During the past four months, the second employment based category under “All Chargeability Areas Except Those Listed”, has shown a backlog.  As a result, our office has received many inquiries from potential petitioners who know that they have strong National Interest Waiver (“NIW”) cases, but are wondering if we can assist them in filing under the Extraordinary Ability, (“EB-1A”) Category to avoid the backlog.  While the November Visa Bulletin thankfully shows that the “All Chargeability” countries will become “Current” again, we think it will be of interest to our readers to share some of the strategies we used in turning these NIW cases into successful EB-1A petitions, especially when considering the long backlog for petitioners from China and India.

For many strong NIW petitioners, it is not unusual for the petitioner to meet two of the three required criteria for EB1A.  Most of the time, the two criteria will be either “publications” and “significant contribution”, or “publications” and “judge of the work of others”.  The problem many of these petitioners face is that they do not convincingly meet a third criterion.  However, by taking the time to carefully examine the petitioner’s background, it is possible to sometimes discover an accomplishment or event in the petitioner’s past that can be used as the third criterion to elevate the NIW case to an EB-1A case.  Using one of our recent cases as an example:

Computer Scientist

This petitioner was from Israel, who held a PhD in computer science and worked for a medium-sized technology company.  He originally approached us for an NIW case but after advising him of the Visa Bulletin backlog, he decided to explore options to elevate his case from NIW to an EB-1A.  He had over 70 citations to six peer-reviewed publications, which is excellent for a petitioner in the computer field.  He also performed many reviews for well-known IEEE conferences, and sat on the technical committee for two of them.  Like many strong NIW petitioners, he did not have an obvious third criterion for EB-1A.  The “significant contribution” criterion did not appear to be viable since he only had recommendation letters as evidence, and in our past experience the USCIS has a strong preference for objective evidence when granting any of the EB1A criteria.

After thoroughly going over the petitioner’s background for the previous few years, we discovered that there was an e-mail chain from over 15 different researchers all regarding a certain algorithm that was featured in one of his published articles.  Not coincidentally, this article was also his highest cited paper.  We used these e-mails in conjunction with his recommendation letters to create a strong third criterion and argued that the heavy interest his algorithm garnered by other researchers was indicative of the “significant contribution” he made to the field.  The case was approved in 12 days via Premium Processing without an RFE.

As the above case demonstrates, petitioners can sometimes upgrade an apparent NIW case to an EB1A case if a thorough examination of the petitioner’s background is conducted by an experienced attorney.  The recent backlog for the “All Chargeability” countries is a good reminder that for those petitioners from countries such as China or India where the second based employment category backlog seems very long, it can be worthwhile to re-examine the possibility of an EB1A.

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