TSC EB-1 Adjudication Standards

In a recent liaison meeting between the American Immigration Lawyers Association (“AILA”) and the USCIS Texas Service Center (“TSC”), several issues regarding EB1 adjudication were discussed.  Of particular interest was AILA’a inquiry regarding EB-1 cases TSC’s explanation of when it will deny a case outright and when it will issue a Request for Evidence (“RFE”), or Notice of Intent to Deny (“NOID”).

The TSC explained that it may issue an RFE if the required “initial evidence” is provided, but the officer has a question about the approvability of the case or requires additional information or documentation.  A NOID may be issued if the officer is leaning toward a denial but a rebuttal to the specific reason for denial would assist in enduring an appropriate adjudication.

The TSC may deny an EB-1 case outright, without issuing an RFE or NOID, when a petition is “lacking the required initial evidence”.  For an EB-1A case, the required initial evidence is defined at CFR § 240.5 as either (1) evidence of a major award or achievement, or (2) evidence of three of the 10 EB-1A criteria listed in CFR § 240.5(h).  For an EB-1B case, the required initial evidence is defined as: (1) evidence to two of the six criteria listed in CFR 240.5(i), (2) Evidence that the alien has at least three years of experience in teaching or research, and (3) an offer of employment from a qualified employer.

These broad definitions of the term “initial evidence” encompass nearly all the substantive evidence an EB-1A or EB-1B petitioner will present for a case.  In practical terms, this means that the TSC could potentially deny a case outright, without an RFE or NOID, if it believes that any pertinent evidence for the case is “lacking.”  How the TSC defines the term “lacking” is unclear, but in the past few months, our office has received inquiries from two denied self-petitioners whose cases may offer some insight into this definition.  Both cases were EB-1A cases that were denied without an RFE or NOID.   Although their initial evidence was not very strong, all of the required initial evidence was submitted, thus suggesting the term “lacking” as used by the TSC means “not good enough” as opposed to “missing”.

Based on AILA’s inquiry, the TSC’s answer, and our own observations of EB-1 adjudications, it does appear that the TSC is increasingly issuing denials without giving the petitioner a chance to respond to an RFE or NOID.  Keeping this alarming trend in mind, it bears pointing out that it is best to present all available evidence in the initial submission to the TSC.  We are aware that many petitioners feel that it is wise to hold back some evidence in case an RFE is issued – our office has never agreed with this strategy, and it could now lead to an outright denial of the case.   Now more than ever, it is important for petitioners to submit a complete and well presented case to the TSC to avoid the unhappy result of a denial without an RFE or NOID.

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