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  • Article: Seven Effective Tips To Preparing Non-PERM Employment Based Visa Petitions by Youngwook "Christian" Park and Naomi Young Kim

    Seven Effective Tips To Preparing Non-PERM Employment Based Visa Petitions

    by

    Youngwook "Christian" Park and Naomi Young Kim


    INTRODUCTION

    Clients with unique credentials approach immigration practitioners to gauge the viability of non-PERM employment-based (EB) visa petitions, such as the EB-1A Extraordinary Ability (EB1A), EB-1B Outstanding Professor/Researcher (EB1B), EB-2 Advanced Degree/Exceptional Ability National Interest Waiver (EB2NIW), EB2/3 Schedule A, Group II (Sch. A), and O-1 Extraordinary Ability (O1). In many instances, the client believes that he or she has special qualities that distinguish him or her from the masses. This article addresses methods of effectively identifying viable cases and strategies to strengthen non-PERM employment based visa petitions. This article advances the following seven guidelines in preparing non-PERM EB cases: (1) case assessment and management of client expectations; (2) documentation of credentials; (3) strong reference letters; (4) succinct attorney cover letters; (5) avoiding pitfalls; (6) effective RFE/NOID response strategy; and (7) ways to strengthen weaker cases.

    I. CASE ASSESSMENT AND MANAGEMENT OF CLIENT EXPECTATIONS.

    It is difficult to properly assess the viability of non-PERM EB cases because statutes and regulations offer little practical guidance in determining the credentials necessary for an approval. While the statutes and regulations establish the legal criteria for which an alien may be eligible for an EB-based immigration benefit, the broadly defined language gives leeway for adjudicators to reach different conclusions for similarly credentialed beneficiaries. For EB1s, even after satisfying the requisite factors, the Kazarian decision allows adjudicators to second guess eligibility based on the totality of evidence submitted. For EB2NIW, the NYSDOT criteria is broad enough for an adjudicator to issue RFEs or denials based on "national interest" grounds. Given that these immigration benefits are not designed to be limited to Nobel laureates or equivalent, the attorney is tasked to make a difficult assessment.

    In assessing a non-PERM EB case, the ultimate question, in the authors' view, is whether a reasonable expert in the same field would attest to the client's expertise in the field. If an esteemed expert would agree that the beneficiary is also a recognized expert, then the authors believe that a good argument could be made that the beneficiary meets the requirements as defined under the statutes and regulations. Inevitably, practitioners come across the humble beneficiary--an individual with excellent credentials but under the belief that he or she is a junior to the megastars of the field. In this instance, the appropriate question, again, is not necessarily what the beneficiary believes, but rather what the beneficiary's esteemed colleagues in the field hold to be true. As a practical matter, everyone has a boss, and there's someone else who's better than any given individual for any given sub-skill--yet, non-PERM EB cases are not designed to be unachievable.

    Practitioners should note that defining the field and sub-field establishes the framework for which an adjudicator may view the case. The attorney should confer with the beneficiary to narrowly define the beneficiary's field of expertise because, arguably, it's easier, and perhaps more persuasive, to claim that a person is an expert of a sub-specialty area as opposed to a broader field. In the case of a "computer" expert, the practitioner should explore further to identify the sub-specialty. For example, the beneficiary may have published extensively on algorithms or unsupervised machine learning. If the beneficiary's expertise is characterized as a broader field, a reasonable expert in the same field would have greater hesitation in agreeing to that statement. Again, the question is whether a recognized expert would consider the beneficiary a notable peer in the field.

    As part of this exercise, the attorney must achieve at least a basic level of understanding of the beneficiary's field and sub-field so as to be able to communicate the beneficiary's expertise in lay terms to the adjudicator. With the abundance of resources online, such as Wikipedia, the practitioner can gain insight to the beneficiary's field. Additionally, the practitioner can confer with the client to extract information in identifying both the broader field (e.g., quantum computing) and sub-field (e.g., quantum computing applied to optimization problems).

    During the initial client conference, the attorney should establish clear expectations as to the result because adjudicators have broad discretion in non-PERM EB cases. Neither the statutes nor the regulations define how many publications or citations is sufficient--rather, the law simply sets forth the criteria and characterizes the qualities for eligibility. As such, reasonable adjudicators may reach different results for similarly credentialed beneficiaries. How should this discrepancy be messaged to the beneficiary? Adjudicators may not be experts in the beneficiaries' field of expertise and yet are tasked to make adjudications based on the evidence. The reality is that what one reasonable adjudicator may see as approvable, another might not. This process seems to mirror the common job or school application process. Stronger candidates generally, but not necessarily, see higher approval rates; weaker candidates tend to see lower approval rates; and those in between, fall in between. Ultimately, practice experience will guide the practitioner in gauging the likelihood of success of a case and properly communicating this in advance to the client.

    II. DOCUMENTATION OF CREDENTIALS.

    The documentation of the beneficiary's credentials determine the success of a non-PERM EB case. Even if a beneficiary has excellent credentials, a case without proper documentation is unlikely to receive proper attention. The supporting documents should cover all aspects that relate to the beneficiary's work in the field of expertise. In essence, each line of a beneficiary's resume describing an honor or distinction should be supported by evidence. The documentation should not be limited to actual awards or publications but should also include descriptions of the significance of the award or honor of being selected for publication as well as the prestige of the institution that employed the beneficiary.

    A balanced combination of two different types of evidence--objective evidence and non-objective evidence--can effectively showcase a petition's strength. The first type relates to evidence that exists independent of the instant non-PERM EB filing. These documents establish an objective basis for the beneficiary's credentials and serve to verify any factual statements summarized in a resume. Examples include: receipt of documentation of receipt of awards, such as TEDx or British Academy of Film and Television Arts; website printouts describing an IEEE conference for which the beneficiary was selected to present his or her research; copies of published research and patents; impact factors for journals and explanations of impact factors or h-index; Google Scholar citation count for the beneficiary's research; emails documenting the beneficiary's service as a judge at a conference or as a peer-reviewer for journals; website printouts describing the institution (and its prestige) that employed the beneficiary; US News & World Report rankings; and degree diplomas and professional licenses, among others.

    The second type of evidence relates to evidence specifically prepared for the EB filing such that the document might not have existed in the absence of the EB filing. This type is primarily composed of testimonials and reference letters as described in the next section. The function of this secondary type of evidence is to explain any void left by the first type. For example, leading or critical roles in a project might not necessarily be captured in a resume. As such, reference letters or other testimonials can be helpful in explaining the beneficiary's role. The reputation of being selected for a particular role at a prestigious institution can be explained in a reference letter as well. The nature of the impact of a particular research can be articulately captured in a personal testimony. The authors believe that the first type tends to provide a norm for which an adjudicator may initially view a particular petition. On the other hand, the second type provides context to the objective credentials cannot be adequately explained through a long list of exhibits of website printouts or copies of journals publications.

    Every piece of document in the petition should be self-explanatory. If a reasonably educated person would have to put in extra effort to draw a connection between the document and the overall picture, the document may be meaningless. The authors venture to say that it may even be harmful because it draws attention away from the more important pieces of evidence from the adjudicator. If the font size is too small or difficult to read, this would inhibit the adjudicator's efforts in making a finding. As such, the practitioner should consider annotating or circling key words on the document as necessary. The attorney's goal is to present a persuasive case, not to make the review process more difficult for the adjudicator. The authors attempt to be in the shoes of the adjudicator when preparing cases.

    III. STRONG REFERENCE LETTERS.

    Strong reference letters serve to explain and reinforce the significance of the beneficiary's credentials, and it is critical to compile a set of strongly worded reference letters explaining the beneficiary's credentials. Generally, the documentation of credentials for each line in the resume may be performed with objective evidence, but such evidence may fall short of explaining the significance of the beneficiary and his or her achievements. For example, the originality and impact of a particular research project might not be readily captured through a copy of the research publication and number of citations alone. Additionally, the prestige of the institute from which the beneficiary performed groundbreaking research might not be fully described through objective evidence. Moreover, the reputation of the beneficiary is unlikely to be captured in any objective evidence. Reference letters address this critical aspect: personal testimonies from esteemed figures in the field fill the gap and enhance the overall strength of the petition.

    Some practitioners report that the value of strong letters is questionable. RFE/NOIDs and denial notices, in fact, question the value of letters and reject the face-value of testimony offered by esteemed figures in the field. Yet, the authors contest the notion that letters are immaterial. Reference letters play a critical role in explaining the meaning of objective credentials in lay terms. For borderline cases, strong reference letters may bump up, e.g., a B+ case, to an A- case. Similarly, weak reference letters can put the success of a case in jeopardy as well. The testimonials can tip the balance when considering the rest of the documentation in totality, and practitioners should devote careful attention when reviewing the content.

    Other practitioners fervently argue that reference letters will not play its role unless it reaches a certain number of pages. The authors believe that the relative length does not matter so much as the content. The letters should describe in detail the credentials and/or significance of the beneficiary's achievements, and explain the reputation, and give context to, the beneficiary's work as a peer. Practitioners should keep in mind that the crux of a case is determined not by the volume, but by the essence of the case.

    Each petition should, as a general rule of thumb, include 4-6 reference letters, of which at least two should come from each of the following: non-US letterheads, US letterheads, letters from objective sources, and letters from non-objective sources. The international letterheads serve to demonstrate the international acclaim (though this not necessarily applicable to all non-PERM EB types). The US letterhead reinforce the domestic sustained acclaim and gives additional creedence as international letterheads may be scrutinized more. Letters from objective sources offer impartiality and help establish an objective view to the beneficiary's reputation--as such, at least a few letters should be from such impartial sources. While USCIS may give less creedence to letters signed by personal acquaintances of the beneficiary or an interested party, colleagues or previous managers can offer a glimpse that is only available to individuals who have intimate knowledge of the beneficiary's role or work. For example, a beneficiary's leadership may only be demonstrated through a letter from an acquaintance in the same organization. As such, the authors recommend at least a few letters from sources that personally know the beneficiary. The authors recommend 6 letters per petition as a means to strike a balance between having too few to be able establish the beneficiary's credentials and too many, which can seem superfluous and repetitive.

    While reference sources should be selected based on the reputation of each reference source, the letterhead plays an essential role in adding credibility. The adjudicator must rely on the supporting documents, including the reference letters, to reach a finding as to whether the beneficiary meets the legal criteria. Yet, this becomes a difficult task as the adjudicator is unlikely to be an expert in the beneficiary's field of expertise. As such, the adjudicator will have to rely on who says what regarding the beneficiary. But it's human nature that greater creedence will be given to testimony by a source that is readily understood and credible. For example, everyone knows Harvard to be an exemplary institution even though Harvard may not be the best at each field. Given two equally strong testimonies on different letterheads from two equally-reputable sources, select the reference source that is more likely to be recognized as credible by a reasonable adjudicator--for this process, practitioners should consider the familiarity of a letterhead as well.

    The reference letters should come from a variety of letterheads. Having too many reference letters come from the same letterhead may give the impression that the expertise of the beneficiary is limited to a handful of institutions from which the references are associated with. E.g., if 4 of 6 letters come from institution A, then it seems the testimonies are limited to the views of those with institution A. This can become a problem when trying to convey that the beneficiary has sustained national or international acclaim or that the beneficiary's work is national in scope.

    The authors often compare the non-PERM EB process to a graduate school application process. Admissions officer are likely to select candidates with strong credentials. As part of the application process, candidates submit credentials, supporting documents, and reference letters. As for reference letters in support of students coming from abroad, admissions officers are more likely to give greater creedence to a letter from a familiar and reputable organization as opposed to an unfamiliar organization--credibility is key. In addition, admission officers are more likely to get annoyed with fluff and will quickly catch on to an application with weak merits. The authors believe this principle is applicable to all aspects of the non-PERM EB process.

    IV. SUCCINCT ATTORNEY COVER LETTERS.

    The attorney cover letter, or cover letter plus exhibits, should be a persuasive piece that draws the links, in lay terms, between the beneficiary's credentials and the legal criteria. Yet, many practitioners disagree on how best to accomplish this objective. Some practitioners espouse the "let-the-evidence-speak-for-itself" approach with a brief letter drawing the links. Others believe that this cannot be done under 10-15 pages (or even 20 or more), with large block quotations from the reference letters. The authors believe that the former approach is better. If the authors were the adjudicators, we would not want to read a dense, lengthy document prepared by an attorney in addition to the mountains of paperwork to be reviewed as part of the petition. Instead, we would prefer: (1) a short cover letter explaining the area of expertise; (2) the work performed by the beneficiary, (3) the significance of the work and its impact in the field, and (4) how each major piece of evidence falls under the legal criteria (and review the evidence and avoid having to read a lengthy attorney document on what the attorney believes). Practitioners disagree on whether to insert block quotations or just a few lines from some of the stronger reference letters. This, the authors believe, is a matter of judgment for each practitioner as we believe that there are multiple effective ways to accomplish the same goal.

    V. AVOIDING PITFALLS

    Avoid "rising star" reference letters. Rising star letters depict the beneficiary as one on the way to the top, rather than a leader already at the top of the field (to note, this is another benefit of narrowly framing a beneficiary's field). These letters describe the beneficiary's promising career and emphasize future potential contribution, but the letters fail to explain the impact that the beneficiary has had in the field already. Common rising star descriptors include: "young," "promising," and "junior." The "rising star" letters can give the impression that the beneficiary is simply not yet at the level that merits approval. Practitioners should carefully comb through the language of the reference letters and advise the client accordingly. For the same reason, reference letters should avoid descriptions indicating that the candidate is junior to the reference source.

    Avoid highlighting the referee's credentials in the reference letter if it may lead an adjudicator to believe that it is in fact the reference source who is truly at the top of the field. For example, there is no need to draw attention to the fact that the reference source has 10,000 citations, whereas the beneficiary only has 50 citations. Yet, it is still important to provide context to the reference source's credentials as it adds weight to the statements of the reference source. In such cases, practitioner may consider describing the reference source's title, honors received, but without hard figure comparisons, such as the number of citations. In the alternative, a brief bio summary may be attached to each reference source in lieu of a summary of the reference source's credentials as part of the reference letter.

    Each reference letter should note the reference source's field of expertise, and ensure that this field matches the beneficiary's field. If not, then arguably, the reference source's statements relate to a field beyond the expertise of the reference source (e.g., avoid a computer science expert discussing the beneficiary's credentials as a biochemist).

    Practitioners should be wary of adding fluff to the petition. Unrelated or loosely connected information detracts from the crux of the case and may negatively impact the persuasiveness of the petition because such documentation can suggest the absence of legitimate strengths to a case that the beneficiary had to resort to flimsy documentation.

    VI. EFFECTIVE RFE/NOID RESPONSE STRATEGY.

    Several strategies may assist the practitioner in the event of an Request For Additional Evidence (RFE) or Notice of Intent to Deny (NOID). Some clients mistakenly associate an RFE/NOID with automatic denial--this is simply untrue. Yet, the issue is the likelihood of successfully overcoming the RFE/NOID, especially if the RFE raises the extraordinary/outstanding/exceptional/NIW prong. Practitioners should note that responding to an RFE/NOID without additional evidence is likely to result in a denial. Given that the practitioner has prepared a comprehensive petition for the initial filing, what additional documentation can be provided to show that the beneficiary, e.g., is one of the top experts in the field? In such instance, review the petition to see if any aspect could be strengthened. Perhaps, a few additional reference letters may tip the balance. There is also the possibility that the adjudicator mistakenly missed a key piece of the beneficiary's credentials. As such, accentuate the strengths of the case in the attorney response to the RFE/NOID. In the end, however, it is difficult to predict the result unless the RFE/NOID is responded to.

    Some practitioners suggest that the petition be withdrawn in the event of an RFE/NOID to avoid a denial. Some practitioners believe that a previous denial may prejudice future filings. If there is a previous I-140 denial in the record, the USCIS will have access to the information (and the I-140 requires this information as well). Yet, each petition should be adjudicated based on the evidence and documentation submitted. While individual adjudicator subconscious predilections may play a role, the authors have seen approvals after refiling a case that was previously denied.

    In high volume practice, practitioners may benefit by developing a record of the strengths and specifications of a beneficiary and the final result of the EB filing in relation to each adjudicator. Note that the RFEs/NOIDs/denials issued by the USCIS may identify the adjudicator number, and documenting the credentials and strength of a case in relation to the USCIS adjudicator may assist in predicting the likelihood of success in similar cases. For example, certain adjudicators tend to be "tougher" may be tougher. Note that approval notices will not indicate which adjudicator issued the approval, but only RFE/NOID/denial include the officer number. This can be helpful in identifying USCIS trends.

    Advance planning can be helpful in avoiding RFE/NOIDs as well. This can involve a strategy to identify EB1B eligible cases and to file them as EB1Bs as opposed to EB1As. While EB1B requires employer sponsorship, EB1B approval rates tend to be higher. It's important to note that it might not necessarily be the case that the USCIS tends to approve these at a higher rate for the sole reason that it's an EB1B. In fact, other factors may be at play: employers may be more conservative in identifying and supporting EB1B eligible cases; individuals as self-petitioners, and perhaps with credentials that are not as strong, may be more aggressive in testing their luck with the EB1A; finally, EB1B cases tend to involve more objective documentation, whereas EB1A cases can involve other individuals other than researchers and professors that may have greater difficulty documenting the credentials. Practitioners should consider this aspect when selecting the petition type (though it is not impermissible to file both, which can be an option as well).

    Premium processing (PP) eligible non-PERM EB cases is also a topic of reasonable disagreement. Some practitioners believe that requesting PP "automatically" results in an RFE/NOID--the suspicion is that the adjudicator would "flip through" the petition and issue an RFE/NOID. In comparing the results of the cases filed by PP and non-PP, the authors believe that there is no noticeable difference between the two if the strengths of the case are taken into account. Rather, filing cases that do not have a strong likelihood of EB1 success and requesting PP service will result in a quick RFE/NOID. Meanwhile, the EB2NIW, which does not offer PP and may linger for 4-10 months with the USCIS, tend to have a lower bar than the EB1 anyway. In any case, many PP I-140s receive RFE/NOIDs, and the practitioner should alert the client.

    VII. WAYS TO STRENGTHEN WEAKER CASES

    Weak cases result either because the credentials of the beneficiary are not as strong or because the documentation is lacking. If a beneficiary is fairly junior in the field, the practitioner has to overcome the prejudice that the beneficiary is a rising star, not already a leader in the field. If the beneficiary is involved in a field for which few objective documentation exist to provide an objective framework for which a third party may reasonably draw conclusions about the beneficiary's impact, then it becomes increasingly difficult to make a persuasive case to the USCIS. What is the practitioner to do in such cases?

    Identify these cases and confer with the client to explore any unturned stones. While some beneficiaries should be told of the likelihood of failure, perhaps other cases may be strengthened. For example, even if a beneficiary has just a few published research articles, perhaps the journals have high impact factors or serve as the bar that distinguishes leaders from the rest. Some fields have no journals with high impact factors because it is an established field, such as statistics, not a rapidly expanding field, such as computer science. Perhaps the beneficiary has presented at an internationally renowned forum. Each of these factual aspects can tilt the balance, and for "weak" cases, practitioners can benefit by highlighting these aspects.

    There are certain categories of beneficiaries whose work is more difficult to document. For example, business professionals and consultants have greater difficulty in documenting credentials. As opposed to researchers or scientists that have published research or other public records, business professionals and consultants often do not have publicly available information directly attributable to the beneficiary. Furthermore, it may be more difficult to draw the conclusion that a company's success is directly and primarily attributable to the work of one individual's exceptional talent--high-level executives are one exception, however. The practitioner must strive to examine each avenue to document as best as possible. Additionally, when possible, reference letters should emphasize the beneficiary's leadership in addition to the critical function played by the beneficiary. The letters can also focus on a specific skill the beneficiary has mastered, especially if such skill is difficult to document otherwise. In the case of business professionals, the practitioner should also draw from news articles that support information provided in a reference letter.

    CONCLUSION

    The seven guidelines above serve as a starting point for newcomers to the field. As explained above, the law does not set forth how many citations or awards a beneficiary needs for an approval. Rather, the law defines the qualities and characteristics for eligibility such that reasonable minds can reach different conclusions for similarly credentialed beneficiaries. As such, play to the strengths of each case and persuade the adjudicator.


    About The Authors


    Youngwook ("Christian") Park joined Fragomen as an Associate Attorney in Fragomen’s Boston office. His practice involves immigration matters pertaining to the recruitment, hiring, transfer, and retention of international workers. He represents clients in matters before the U.S. Department of Labor, the U.S. Department of Homeland Security, and U.S. Embassies and consular posts abroad. He has advised clients in a variety of sectors, including healthcare, academic, and information technology.
    Mr. Park is fluent in Korean.


    Naomi Y. Kim has been an attorney since 2011. Her practice covers a range of immigration petitions, including Extraordinary Ability, Outstanding Professor/Researcher, State 30, and National Interest Waivers. Ms. Kim received her law degree from the Fordham University School of Law.



    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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