Bruised Egos in a Small Part of the Immigrant Selection Process

This article was last updated on April 16, 2022

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The individual losers in immigration cases usually face the inconvenience of returning to their home countries, more limited access to the good things of life, and sometimes a fear of how certain forces in the old country may treat them. Further, in many cases, the decision means the loss of legal status in the United States.

All of that is bad enough for the alien, and that person may be angry and disappointed, but the ego is intact.

That is not the case with a small set of near-elite aliens, those who have been denied a for “Aliens of Extraordinary Ability” (part of the first employment-based category, or EB-1). They have been told, in writing, that their talents are really not extraordinary. In effect, they are informed:

You are not special and if you want a green card you will have to go through one of the processes that all the other non-remarkable people must endure.

Such a message is in the class of finding out that person you love will not marry you, that your father’s alma mater will not admit you, or that you will not be drafted by Major League Baseball. And the decision, the alien fumes, was written by some faceless USCIS bureaucrat who has not even witnessed the alien’s brilliance, or seen that case full of trophies, or read the books/poems/movies that the alien has written.

It’s not only a real downer, it is thoroughly insulting. So there are a lot of appeals, which I will get to shortly.

One of the major attractions of the EB-1 visa is that it is never backlogged. You file, you get accepted, and you get the visa, just like that. That’s also true for your spouse and your kids.

All other employment-based categories are heavily backlogged, and the more-or-less employment-based EB-5 category for immigrant investors is about to be, but not EB-1. And, of course, some family-based categories have 20-year waiting periods.

Congress has set aside roughly 40,000 visas a year for EB-1 priority workers; a few of these are the extraordinary ones, but most of these priority workers fall into two other categories: “outstanding professors or researchers” and a much larger group of “multi-national executives or managers”, people with good connections to large corporations.

Most of the slots in the EB-1 category (23,030 in FY 2012) went to the spouses and kids of the 16,286 workers. There were only 3,569 extraordinary workers that year, which is about the level of other recent years.

One of the reasons why there is no waiting for EB-1 visas is because USCIS has been pretty strict about who is “extraordinary” and the total number of applications filed (given the demanding requirements) is relatively low.

In FY 2010, which has, for some reason, the most recent published USCIS data, there were 3,200 approvals of “extraordinary” applications, and 1,998 denials, an approval rate of 62 percent. More than 90 percent of the people securing EB-1 status are already in the country, though a few hundred immigrants arrive in that status annually.

For an agency that says “yes” to 90-95 percent of its applicants routinely, an approval rate of only 62 percent is remarkably low.

A low approval rate suggests a lot of denials, one of which arrived in the mailbox of one of my readers, who complained to me about it and led me to this subject.

My reader, who will not be named, seems to be a married citizen of India, probably in his late 30s. Both he and his wife are currently working on those virtually unending H-1B visas that are granted to those with pending green card applications. They are probably in the IT business.

He (and thus she) has been approved for a green card with EB-2 status, but if you are from India, that means a long wait for the card. The current Visa Bulletin states that an Indian national must have an approved application dated before July 1, 2009, to actually obtain the visa. My reader secured an approval after that date, and thus faces a long delay, and so he tried (with the help of a lawyer) to move up to the always-current, EB-1 level

No dice, said USCIS. He is now thinking about appealing the decision to the in-house appeals arm of USCIS, the Administrative Appeals Office (AAO).

My sense, from prior readings of AAO decisions, is that they are usually supportive of staff-level denials (after all, such denials in that agency are rare). I decided to sample, as I had not done before, AAO decisions about EB-1 denials. (One of the helpful things about this entity is that it actually prints its decisions, though they are heavily redacted out of a strange sense of privacy.)

I happened on the year 2012 in which there were more than 200 AAO decisions in cases involving extraordinary workers and started reading randomly selected ones. I had no idea as I opened a case what the decision would be, only that it would deal with, by definition, the denial of an application for an extraordinary worker slot.

I read 20 of them and did not find a single instance in which the alien worker won. In most instances it was because the alien had not met the burden of proof of his or her extraordinary talents; in a few cases, the cases were rejected for procedural reasons, which suggests a not-very-good lawyer. I did not even find a single instance in which the AAO adjudicator had remanded the case back to the staff for further consideration.

I told my reader my findings and suggested that he think long and hard before appealing his decision, to make sure he really, really had a case before going that route.

What I found in the 20 cases was not only 20 bruised egos, but many indications of unreasonable expectations. There was, for instance, the assistant tennis coach who had won some tourneys as a tennis player in earlier years and he thought that qualified him. (The wins, AAO ruled, relate to the worker’s past activity as a player, not his current coaching work.)

There was another athlete who vaguely described some of the trophies in his living room. There was a journalist who had written for some obscure publications. Then there was an actor from Nepal and a cancer researcher, both of whose credentials were not overly impressive. And there were many others who simply could not convince the AAO that they really had extraordinary talents.

I have no idea of how significant linguistic ability in the appeals is in these judgments, particularly the verbal skills of the alien’s lawyer, but I kept running into “[sic]” inserted following quotations from the appeals documents. If you claim you have an extraordinary set of skills, it is useful if your lawyer has an adequate command of English.

My advice to losing EB-1 claimants would be: First, don’t bother to appeal; and second, if you do, hire a high school English teacher to review whatever you, or your foreign-born attorney (if you have one), want to submit to the government.

I opened this blog with a note about the downside of a negative immigration decision on most applicants; the negatives for those losing these extraordinary workers’ decisions are not very drastic; most are here on some form of visa, probably H-1B or J-1, and many have green cards coming to them in the future.

But the failed extraordinary workers’ decisions carry with them some ego-damaging baggage that the routine USCIS negative decisions do not.

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