Question: Examples of cases that you were working on and what documents you usually include to make sure you have things covered in a situation like this?

Answer: The documents and evidence required for an EB2 application can vary depending on whether you are applying based on an advanced degree or exceptional ability. For advanced degree cases, it is important to provide an equivalency for the bachelor’s degree, which can be obtained through collaboration with a third-party partner. Additionally, letters that demonstrate progressive employment experience, including specific dates of employment, are crucial. 

In exceptional ability cases, the focus is more on showcasing extensive experience, typically requiring 10 years of relevant experience. Proof of membership in relevant organizations, such as a professional association, may also be necessary. It is essential to provide evidence that the organization is pertinent to the individual’s field of expertise.

The proposed endeavor plays a significant role in the application. A detailed discussion with the client is necessary to understand their plans in the US. If they intend to work for themselves or start a business, a comprehensive business plan with five-year projections should be included.

By thoroughly preparing the application and including relevant evidence and documentation, such as degrees, licenses, and memberships, you can strengthen your EB2 case and increase your chances of success.

Question: Do you file the business plan at the start or when receiving an RFE, and why?

Answer: If we already know that starting a business is what this person intends to do, then we incorporate that at the beginning. I prefer to include it at the outset to position my client for as much success or as high a chance of success as possible. That’s my role as an attorney. However, I understand that there are situations where clients may not want to present the business plan initially, such as if they are still developing their idea or lack the resources for a complete plan at the moment. In those cases, it is what it is.

Other attorneys choose to present the business plan at the RFE stage without the five-year projections, market analysis, and salary analysis. They handle the plan post-filing of the RFE. Each attorney has their own approach, and it depends on the initial state of the evidence and whether the client can proceed. While I encourage my clients to present the business plan at the beginning, it’s important to note that not presenting it initially is not a deal-breaker. Presenting it at the RFE stage is still a viable option. Ultimately, it’s about the comfort level of the attorney and the client regarding when they want to present that evidence.

Question: Greg’s opinion: Catching it on the RFE, do you consider that smart or risky?

Answer: It’s risky to leave things to fate and hope for the best in the RFE process. It’s important to present as much in favor of the case as possible from the beginning. While some practitioners may take a more casual approach and address issues in the RFE stage, I prefer to be cautious and not invite unnecessary challenges from immigration. Walking on eggshells with immigration is sometimes necessary. When discussing the RFE with clients, it can be a 50-50 chance, and we aim to improve those odds by submitting comprehensive documentation upfront.

However, if you’re currently facing an RFE without a business plan, don’t lose hope. It’s still possible to get it done and submit the required documentation. I would advise having a conversation with your client about the importance of a business plan and encourage them to start saving for it, as an RFE may be on the horizon. RFEs are indeed common these days, and it’s crucial to be proactive and prepared to address them effectively.

Question: RFEs and NOIDs: Do you consider that you are receiving templated NOIDs, or do you feel that the things that they’re asking for are real? Do you handle NOIDs the same way that you handle RFEs or differently?

Answer: The NOIDs that I’ve received have utilized the same template as the RFEs. However, I haven’t had as many NOIDs compared to RFEs. The NOIDs I have encountered are also templated, just like the RFEs. In fact, most RFEs I receive are template-based as well.

When I do come across an officer who takes the time to provide a detailed analysis of the evidence presented, I am often surprised. However, even in those cases, the officer’s interpretation of the evidence is usually mischaracterized in some way, ultimately influencing their discretionary decision regarding the labor certificate waiver.

While I do consider the details provided in an RFE or NOID if they are present, it’s important to recognize that they are often template-driven. Additionally, when an RFE is labeled as “annoyed,” it also follows a template, but it carries a sense of urgency, demanding a more thorough and specific response. It’s crucial to provide a comprehensive and detailed response for both RFEs and NOIDs.

Question: Dealing with RFEs: What is the backlog like and the third prong evaluation?

Answer: The cases I have filed recently are receiving faster approvals compared to those filed towards the end of the pandemic. However, there is still a backlog in processing. Some cases that have been pending for two years, while others filed recently, are approved in a shorter time frame. EB-1s may be experiencing longer processing times now compared to EB-2s. The backlog is compounded by visa bulletin delays. Overall, things are gradually improving, but it’s important to consider each individual case and their specific profile.

The third prong of the NIW criteria depends on the individual’s profile and the unique benefits they bring. For example, even though some attorneys claim pilots don’t qualify, I have successfully obtained approvals for exceptional pilots who met multiple criteria for exceptional ability, demonstrated national importance, and held prestigious memberships. It’s crucial to go beyond minimal qualifications and highlight the individual’s unique contributions and achievements in their profession.

At the RFE stage, it’s common for authorities to argue that the individual is merely doing their job and not exceeding expectations. However, it’s important to clarify that they have gone above and beyond their professional duties, showcasing expertise and cultural or artistic value and filling a gap in expertise within their field. The third-prong evaluation is highly specific to the candidate and their profession, considering the benefits they bring and the lack of similar expertise within the US labor market.

 When discussing the third prong, assessing the minimum qualifications for the profession or endeavor is essential and determining if the candidate surpasses them, excels in their field, or offers a unique benefit to the US. Each case requires a fact-specific analysis, and factors like expertise, cultural value, artistic contributions, or addressing gaps in expertise in a particular region or field play a role in evaluating the candidate’s eligibility for the NIW. 

Many thanks to our guest expert Gregory Boan and many people that expressed interest in our free live webinar! 

Looking forward to the next webinar! For more insights on this topic, download our FREE webinar PDF.