NSC Clarifies Issues for I-140 NIW and I-485 Applications

Earlier this month, the USCIS Nebraska Service Center (NSC) addressed several employment based matters at a meeting with immigration attorneys. The following is a summary of the unofficial minutes from that meeting.

Updates on Adjudicating National Interest Waiver Petitions

According to NSC, adjudications of NIW petitions have slowed because of an “[u]nforeseen operational impact.” NSC has reassured the public that the normal processing timeframe of 4 months had been restored at the end of June. The USCIS Processing Time website reflects this update.

NSC also confirmed that it approves NIW applications for entrepreneurs, though acknowledged that entrepreneurs often find it difficult to meet all three NYSDOT prongs in addition to the EB-2 advanced degree or exceptional ability requirement. The report highlighted the second prong, which a purely local business cannot fulfill; and the third prong, which a first-time entrepreneur lacking a history of achievement cannot fulfill. NSC recommended that interested entrepreneurs visit the USCIS Entrepreneurs Pathways website for useful tips and examples of evidence for NIW entrepreneur applications.

Updates on Adjudicating Employment-based Applications for Permanent Residence (Form I-485)

NSC clarified why Requests for Evidence (RFEs) are issued for all status documents (e.g., I-94s, I-797s) in employment-based I-485 cases. NSC emphasized that adjustment of status is a “discretionary benefit,” for which it can weigh previous violations or overstays as a negative factor in the adjustment adjudication process.

In addition, NSC provided four specific reasons for reviewing all of an applicant’s status:

1) The Service must look for previous periods of unlawful presence that may trigger a bar for admissibility under INA 212(a)(9).

2) The Service must ascertain whether an applicant is subject to the J-1 home residency rule under INA 212(e).

3) The Service must identify A, E, and G nonimmigrants who may be required to submit an I-508 or I-566 waiver before being able to adjust.

4) The Service must identify foreign medical graduates who may require a waiver for INA 212(e) or were admitted in H status while performing a previous medical service obligation.

If you have questions about a pending immigrant petition or a Request for Evidence you have received, please feel free to contact our office.

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