Hidden Minefields in National Interest Waiver (EB-2) Applications

This firm has learned of a recent trend among National Interest Waiver (NIW) applicants, some of whom have taken overly aggressive steps during the application process that may be harmful, and in some cases fatal, to their US immigration futures.

Many people within the immigrant community are aware of the recent changes in National Interest Waiver adjudication following the Dhanasar decision. This new Administrative Appeals Office decision appears to have loosened the adjudication standards for a certain subset of NIW applicants, but definitely not for all. (Check out our post providing our take on Dhanasar). Many applicants are rushing to submit NIW application packages, including final applications for permanent residence. This action, which seems like a great idea, may actually harm the applicant’s immigration future. This is particularly true for applicants who submit these applications toward the end of their degree programs, before they are employed.

Note that this article does not constitute legal advice, but is rather our firm’s reaction to the alarming trend we have observed. The information provided here does not apply to Chinese and Indian applicants; the large number of applicants from these two countries subjects them to certain backlogs that make the steps described below impossible.

When a person submits an NIW Petition for Immigrant Worker (Form I-140), the person has the option of  including an Application to Register Permanent Residence or Adjust Status (Form I-485)  package concurrently with the I-140 application package. The I-485 package almost always includes an application for employment authorization document, or EAD (Form I-765) as well as an application for travel document (Form I-131).

These applicants may receive the EAD within a reasonable period of time, but are no longer guaranteed to receive it within 90 days, as was the case under a regulation that expired in January, 2017. If the applicant moves after he or she graduates, there is a very good chance that the EAD will get lost in the mail. USCIS does not have a good system for address changes.

In some cases, an applicant whose EAD is lost in the mail may need to start the application process all over again.  But that is not the biggest financial risk. It is vital for applicants to understand that if the I-140 is denied, then the I-485 will be denied, and then the EAD will immediately become void. Some unethical attorneys may “sell these applicants a bill of goods” so that the attorney can charge an additional fee for the I-485 package. (Check out our post on this subject). Besides these additional attorney fees, the applicant will have spent $1,225 for the government filing fee, perhaps $2,450 if they include a spouse, and even more if they have children.

If the applicant’s history of accomplishments makes the NIW a “slam dunk” then the advice to file the I-140 and I-485 concurrently may not be bad advice. But for people who have just gotten their PhD, or who have not yet graduated, there are not a lot of slam dunks. Applicants, no matter how accomplished, often need to look beyond their own assessment of their achievements, and get an unbiased opinion from an attorney whom they trust.

Surprisingly, the financial risk noted above is the tip of the iceberg. There is another, more menacing concern. The applicant who takes this course towards the end of his or her education will likely skip the step of applying for Optional Practical Training (OPT, which gives graduates of US universities the opportunity to work in the United States for a year, and in some cases three years, after graduation). After all, the applicant is getting an EAD through the NIW-based I-485, so why spend another $495 on an OPT-based EAD? In fact, USCIS would likely deny the OPT-based EAD because people are not allowed to have more than one EAD at a time (USCIS fears that a person might sell a second EAD to an unauthorized person).

The employer may rely on the I-485-based EAD, and not apply for H-1B status for the person as soon as possible. But meanwhile, if the I-140 is denied, the I-485 will be denied, and the EAD automatically becomes void. The person’s immigration security in the United States immediately falls apart like a house of cards. The person suddenly has NO basis to remain in the US.

Another scenario is that the employer applies for the H-1B while the employee is working using the I-485-based EAD (as opposed to an OPT-based EAD).  In this case, the H-1B will likely be approved for consular processing, as opposed to “change of status.” That is because the person is no longer in F-1 (student) status, as they would be if they had an OPT-based EAD. They are an “adjustment applicant” because of their pending I-485, but this is not a status that allows a “change” to H-1B.

So then, when everything is denied and the EAD becomes void, the person has to drop what they’re doing and leave the country to go get an H-1B visa and return in that status.

For these reasons, we rarely encourage our clients to submit the I-485 concurrently with the I-140, simply because it puts a lot of money at risk for them, even when they are safely in H-1B or any other status. In some cases, there may be reasons for taking this risk, but it is vital that the client understand and assess the risks fully before taking this step.

This firm provides consultations for NIW’s, as well as EB-1 permanent residence applications, at no charge. We make a point of giving potential clients an honest assessment of their chances of success, and always talk through the timing of the I-485 filing as a part of the consultation. We welcome the opportunity to explain the issues described in this blog post more fully.