Observations On Immigrant Visa Processing For Aliens Of Extraordinary Ability At The Vermont Service Center
The first preference extraordinary ability immigrant visa category (EB1-1) allows foreign nationals whose experience shows that they are at the top of a specific field of business, arts, sciences, education or athletics to apply directly for an immigrant visa without going through any form of the labor certification process. A foreign national may apply for him or herself, or may be sponsored by an employer.
Until last fall, the U.S. Citizenship & Immigration Services’ Vermont Service Center (VSC) had been relatively consistent in its handling of these petitions. The variation in its approach was likely to manifest itself in terms of changes in processing times. Over the last ten years, processing time for extraordinary ability cases has ranged from a matter of days up to nearly two years by the fall of 2004.
In late 2004, VSC began a trend of summarily denying petitions without issuing any request for evidence at all. This trend was grounded in a now-rescinded May 2004 memo that allowed adjudicators to deny cases without the use of a request for evidence (RFE) or notice of intent to deny (NOID.) Although Associate Director William Yates revoked this policy in a subsequent memo issued in February 2005, the trends that first manifested themselves last fall continue to be felt today.
First, VSC has moved from a two-year wait to process EB1-1 petitions back to an approximate processing time of five to six months as of July 2005. Indeed, some petitions have been processed and approved even more quickly than that. Taken together with a concurrent adjustment of status application, this has given many foreign nationals a faster route to permanent residence than they had expected or than they could have achieved via the other employment based immigration preference categories.
Second, VSC has taken a stricter approach to many EB1-1 petitions than it would have in the past. Of course, adjudication of these petitions is governed by the Immigration and Nationality Act §203(b)(1)(A) and the regulations at 8 C.F.R. 204.5(h). Each EB1-1 case is highly individualized. Likewise, parsing the law and regulations is by necessity subject to human nature. These factors taken together have led to greater variation in EB1-1 outcomes than in some of the other preference categories. Divining the methods that U.S. Citizenship & Immigration Services adjudicators use to approach the review of these cases can be difficult. The positive feedback comes in the form of an approval, always a good thing, but one which does not explain what made one petition more impressive than another. Foreign nationals and their lawyers can learn much from the negative feedback found in RFEs, NOIDs or denials. From these, it becomes apparent that Service adjudicators, like attorneys, are fond of boilerplate.
The standardized language of boilerplate has its uses, but no petition can be presented as a matter of boilerplate, and likewise, no petition can be thoroughly reviewed and commented upon solely by recourse to boilerplate language. The boilerplate language found in many of the EB1-1 denials that came out of the VSC in late 2004 and early 2005 was so repetitive (even down to details from unrelated petitions) that it was clear that adjudicators were rushing through the petitions before them without giving them the full consideration merited.
Any attorney who has worked on many of these petitions will come to recognize the standard boilerplate language, and the often colorful turns of phrase that adjudicators have come to love. In taking a look back at a few RFEs that have resulted from a couple of hundred EB1-1 petitions filed over the last six to seven years, this author’s personal favorite is the one stating that “the industry in which the beneficiary is employed is renowned for publicly anointing those who have invented a better mousetrap.” However, recent RFEs show that Service adjudicators have added a new stock of phrases to their repertoire, which are demonstrative of changes from the way the Service has adjudicated these cases in the past.
Many of these changes relate to the use of testimonial evidence. The Service appears to be suspicious of testimonial letters given on behalf of foreign nationals. We have heard that such letters are not “primary evidence” and that letters written “in support of the petitioner’s request for visa preference” are somehow suspect. A foreign national is expected to provide “unsolicited evidence” of the acclaim he has earned. Moreover, Service adjudicators, who once were quite focused on letters from “independent experts,” have now started to demand – often simultaneously with the dismissal of other testimonial letters from such experts – letters of support from a foreign national’s employer, even in the case of a self-petition. Service adjudicators have expressed a strong preference for “contemporaneous documentation” and for “evidence in existence prior to the preparation of the petition.”
These changes show that a successful petition for EB1-1 classification must be prepared with an eye for detail, and that petitions should rely on strong evidence in a variety of forms. For example, approvals that followed the responses to RFEs that were dismissive of testimonial evidence show that reference letters that explain and refer to other documentary evidence will be taken seriously. A packrat foreign national, who has saved all the “contemporaneous” documents that have come her way over the course of her career will be a blessing. Even other foreign nationals, who have saved fewer materials, will benefit from a careful review of all possible evidence that shows that they are among the few who have truly reached the top of the field. For some extraordinary foreign nationals who do not have an extraordinary document set, long term planning may be key in advising them on steps that they may take to better demonstrate their extraordinary abilities in a way that the Service can appreciate. Evidence is cumulative; that is, each piece need not show extraordinary ability, but taken together, the evidence must form a convincing presentation of a foreign national and his or her extraordinary abilities.
About The Author
Lisa M. Jacobs, Esq. has been practicing immigration law since 1995, and has operated her Massachusetts-based office since 1998. She previously was associated with a mid-sized immigration practice in Philadelphia. She is admitted to the bars of Massachusetts and Pennsylvania and is a member of the American Immigration Lawyers Association. Ms. Jacobs earned her law degree from Temple University School of Law and her bachelor's degree in International Politics from Georgetown University. Ms. Jacobs practices in most areas of immigration law, but is particularly focused on business immigration and extraordinary ability petitions. She may be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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