1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US
A reader asks:
I graduated in 2011 in China with a master’s degree, and I worked as a computer professional teacher in a university for the past 12 years. Recently, because of my children’s education, I have the idea of immigrating. The first thing I considered was to New Zealand or Canada. Basically, people must go there before they can get their status. I don’t want to resign now because my children are still little. Now a middleman recommended me to do NIW, and said that I could apply while in China, and I am not in a hurry to go overseas anyway. The current situation is that I have 7 papers, patents and software works which were of average quality, and served as referees for some national competitions. I feel that my qualifications are quite average. However, I talked to several China’s middleman, they all thought my qualifications are sufficient, but they did not mention any of the risk. I am very confused now, please help.
Arthur Lee, Esq. answers:
You might be eligible for an EB-2 NIW. The three criteria for demonstrating your eligibility for NIW are: (1) that your proposed endeavor has both substantial merit and national importance; (2) that you are well-positioned to advance this endeavor; and (3) that on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.
That said, it is unclear what your proposed endeavor would be, and how it would be beneficial to the U.S. government. Assuming that your proposed endeavor meets the criteria, the second question needs to be addressed whether you are well-posotioned. Your Master’s degree (assuming this is in a field that is computer related), having 7 papers/patents/software, and being a computer science professor at a university would be considered. It would also be a good idea to have experts in your field write letters of recommendations describing your accomplishments in the field and how you are well-positioned to advance this field with your work in the United States to solidify your evidence on being “well-positioned.” NIW is on a case by case basis, so an adjudicating officer would need to find that on balance, your proposed endeavor has substantial merit and national importance—as such, your endeavor with computers must be worthwhile to the U.S. government. In your NIW filing, you must show that your endeavor is worthwhile in that it will help advance human knowledge, create jobs, advance the economy, or a field in the United States that the current administration values. The Biden administration through its policy memorandum encourages granting NIW where a foreign worker will advance the STEM (science technology engineering mathematics) fields. Some examples of endeavors that have been found worthwhile in published decisions include being a software developer of stock option valuation, and a software developer with a PhD in music technology applying computer technology to music-related areas for the interests of the U.S.
Also, an officer must decide whether on balance, it would be beneficial to the US to waive the job offer and labor certification requirements. This inquiry looks into factors such as whether you will be self-employed in a manner that does not adversely affect U.S. workers; will own a business that provides jobs for U.S. workers; your work will otherwise lead to job creation; your endeavor has potential to generate considerable revenue consistent with the economy; your endeavor will benefit the U.S. even if other U.S. workers are available; national interests in your contributions are sufficiently urgent (such as U.S. competitiveness in STEM fields); or if labor certification is impractical for your position. You may wish to consult with a qualified immigration attorney who will further advise you on your qualifications as an NIW applicant, and the risks associated with filing such an application.
2. Should I do an appeal or file a motion after my EB-1A was denied?
A reader asks:
I am in China. I submitted the EB-1A application in June last year and received a denial letter in April this year. I submitted a total of four categories and only approved two. What should I do next? Should I do an appeal or file a motion? What is the difference between these two?
Arthur Lee, Esq. answers:
The difference between an appeal and a motion is that a motion will be filed to the same authority that adjudicated your case previously. In your case, it would be the same USCIS service center that handled your EB-1A application. There are two types of motions: (1) motion to reopen would be a motion to the service center to consider new facts that were not present at the time of your original filing; (2) a motion to reconsider is a request to review its application of the law in its previous decision. Meanwhile, an administrative appeal asks a different branch of USCIS (in this case the Administrative Appeals Office (AAO) ) to review the field office’s decision. Just like a motion, an appeal must typically be filed within 30 calendar days of the issuance of denial. Unlike a motion, an appeal requests de novo review which means that the AAO looks at the record anew including all facts and applications of law and it may address new issues that were not raised or resolved in the lower agency’s decision. USCIS aims to adjudicate its motions within 90 days, and the AAO aims for 180 days. Whether to file an appeal or motion is up to you. Many attorneys opt for appeal. However, if you choose to file a motion note that you can still appeal to the AAO if your motion is denied or dismissed.
3. The duration of an H-1B visa depends on several factors
A reader asks:
I worked in the United States for more than three years before, and I came back to China this year. In early May, I applied for the first H-1B visa at the Shenyang Consulate. During the visa interview, I told the visa officer that I had been working at Qualcomm, and my work was in the sensitive direction of chip verification. I thought I would be background checked, to my surprise, I passed the interview and my passport was submitted. However, after getting the passport back, I found that the H-1B is only valid for 4 months. My I-797 is valid until July 2025. My passport doesn’t expire until 2025. I don’t understand why the H-1B is only given 4 months, shouldn’t it be a one-year H-1B?
Arthur Lee Esq. answers,
The duration of an H-1B visa depends on several factors including the specific circumstances of your case, the discretion of the consular officer, and any supporting documentation provided. Since you have a valid passport for 2 years, as well as valid H-1B status for 2 years, there is nothing on the reciprocity schedule for H-1Bs with China to show why you would be given such a short time. On H-1B reciprocity with China, you should be given 12 months or the period of validity of your H-1B petition, whichever is less. Since your passport and H-1B status are valid until 2025, it is surprising that you did not get a 1 year visa. It seems that reason for the shorter duration on your H-1B visa was the consular officer’s discretion, if not a mistake. Consular officers have the authority to determine the validity period of a visa based upon their assessment of the individual’s circumstances such as duration of job offer, petitioner’s compliance history, and other relevant information. While this is just speculation, perhaps the officer chose to give you an easier interview, but limit your ability to go in and out of the country without further questioning due to your work in a sensitive area in technology.