USCIS’s Inconsistent Approach to EB-2 NIW: Why Identical Cases Get Different Outcomes

The road to approval — even amid rising EB-2 NIW scrutiny. Preparation makes all the difference. | Adobe Stock

By Helen Partlow, Managing Attorney at Waypoint Immigration USA

Over the past several months, there has been a clear shift in how EB-2 National Interest Waiver (NIW) petitions are being adjudicated. While we began seeing heightened scrutiny toward the end of Biden’s term, the increase in Requests for Evidence (RFEs) under the Trump administration has been particularly stark. RFEs are being issued at an unprecedented rate, even for cases that are considered strong. This suggests that rather than a nuanced review of the evidence, officers are often issuing RFEs reflexively, with little engagement with the substance of the petition.

Despite this, we are still securing approvals. Just last week, three EB-2 NIW cases were approved outright, reinforcing the fact that well-prepared petitions can and do succeed. However, the sharp increase in RFEs raises concerns about whether officers are genuinely applying the Matter of Dhanasar standard or merely issuing RFEs as a default reaction. A closer look at recent RFEs reveals some troubling patterns, including officers disregarding core arguments made in the petition, imposing incorrect evidentiary burdens, and conflating EB-2 NIW with EB-1A standards.

USCIS's Failure to Engage with the Petition

One of the most frustrating trends in these RFEs is not necessarily that the legal standard is being misapplied, but that officers often appear to ignore the petition entirely. We spend considerable time crafting detailed, evidence-backed petition letters that clearly establish how a petitioner’s work extends beyond their employer and has a broader impact. Yet, the RFEs we receive suggest that officers are not engaging with this information at all.

A common assertion in recent RFEs is that the petitioner has not demonstrated an impact beyond their employer, despite the fact that this is explicitly addressed in the petition letter along with supporting evidence. The argument that USCIS fails to engage with is not whether a petitioner must show impact beyond their employer (they do) but rather that the officer seems unwilling to acknowledge or analyze the evidence provided. Instead, the officer defaults to issuing an RFE demanding proof of broader impact without referencing any of the materials already submitted.

In cases where we have already detailed how the petitioner’s work influences an industry, benefits a government initiative, or contributes to national priorities, the response must forcefully call out this oversight. RFEs that simply dismiss entire sections of the petition cannot be allowed to stand unchallenged. It is often effective to explicitly cite sections of the petition letter in our responses, demonstrating that the officer already has the requested evidence and should have considered it in the first place.

The Overuse of Citations as a Measure of Influence

Another troubling pattern in recent RFEs is the increasing reliance on citation counts as a proxy for determining whether a petitioner is well positioned to advance their proposed endeavor. While citations can certainly be helpful, they have never been a requirement under Dhanasar. Yet, we are seeing RFEs that imply that a lack of citations calls into question the petitioner’s ability to contribute to their field.

This issue has arisen even for petitioners whose work is being actively implemented in industry, used by government agencies, or adopted in critical infrastructure. In these cases, the lack of academic citations is irrelevant because the impact of the petitioner’s work is tangible and measurable outside of research publications.

Responding to these RFEs requires a direct approach. Officers must be reminded that citations are one of many ways to establish impact, but they are not a requirement. The response should refocus the argument on real-world application, whether through patents, contracts, industry adoption, or expert letters attesting to the significance of the petitioner’s work.

Confusing EB-2 NIW and EB-1A Standards

We are also seeing cases where USCIS conflates EB-2 NIW with EB-1A requirements, asking petitioners to demonstrate that they have played a critical or leading role within their company. This is a fundamental misunderstanding of the EB-2 NIW standard.

Under Dhanasar, the petitioner must be “well positioned to advance the proposed endeavor,” which is a different and lower threshold than the EB-1A requirement of sustained national or international acclaim. It is entirely possible for a petitioner to be well positioned to contribute to a field without holding a senior leadership position at their employer. There is no certain level of experience required for an EB-2 NIW.

When responding to RFEs that make this error, it is crucial to clarify the distinction between the two classifications. USCIS must be reminded that while leadership roles can be helpful, they are not a requirement for an NIW approval. The petitioner’s ability to advance their field is the standard that should be applied, and evidence of research contributions, real-world impact, and recognition from peers should suffice.

The Lack of Consistency in Adjudications

The most concerning aspect of this increase in RFEs is the lack of consistency in adjudications. Some cases sail through with approvals, while nearly identical ones receive RFEs. Just last week, we received three straight approvals, which confirms that USCIS is capable of adjudicating these cases correctly. But the randomness of RFEs suggests that some officers are far more aggressive in their review than others, and that a petitioner’s chances of approval may depend more on which officer they are assigned rather than the strength of their case.

This inconsistency makes it even more critical to ensure that RFE responses force officers to engage with the evidence already provided. If a petition was strong enough to be approved without an RFE in one case, then an RFE in a similar case likely means the officer failed to fully review the materials. Our responses must press this point, highlighting direct references to the original petition to counteract the growing tendency of officers to issue RFEs without justification.

Final Thoughts

The current surge in RFEs for EB-2 NIWs reflects not just increased scrutiny but a breakdown in adjudication quality. Officers are frequently ignoring key arguments, applying incorrect standards, and failing to engage with the evidence presented. While this trend is frustrating, it does not mean approvals are out of reach.

As we continue to see approvals alongside RFEs, it is clear that well-prepared cases are still getting through. The key to overcoming these obstacles is in meticulously crafted RFE responses that hold USCIS accountable for its adjudication errors. By directly addressing officer missteps, reasserting Dhanasar’s actual standard, and forcing engagement with the petition, we can continue securing approvals despite the increasingly arbitrary nature of the process.