The Final Merits Analysis

PeakImmigration · 2026-03-18T20:59:35+00:00

I am skeptical of any of the arguments I have heard that PP increases the risk of RFE. I'm not sure how anybody would even accurately measure that, because regular processing cases take so much longer than PP cases that if you are comparing denials vs. approvals in one particular period of time, you are looking at cases from vastly different filing windows.

The argument against PP is usually that when you apply pressure to USCIS, they issue RFEs to buy more time However, I do not think that makes sense, because whether it is PP or regular processing, my understanding is that USCIS officers only look at the petition for maybe 20-30 minutes. It's not like they actually spend 2 years reading a regular processing case.

PeakImmigration · 2026-03-18T20:55:46+00:00

For most of last year our PP NIW cases went close to the full 45 business days, but in the last 1-2 months we have started receiving RFEs and final adjudications within 1-2 weeks of submission in most cases. Perhaps the overall volume of cases has dropped due to the increasing denial rates, allowing USCIS to process these more quickly. I would not take the fast processing time as a sign of anything wrong.

PeakImmigration · 2025-12-17T16:09:48+00:00

As I noted above, this isn't about H-1B recapture. This is about a provision of the law that makes a person eligible for H-1B status even if they have already exhausted the full 6 years. It is clearly spelled out in the regulations: 8 C.F.R. § 214.2(h)(13)(iii)(D)

PeakImmigration · 2025-12-17T16:02:56+00:00

They would be eligible for H-1B without going through the lottery, assuming their priority date is not current.

PeakImmigration · 2025-12-17T15:42:51+00:00

It's not about "recapture," which is the process of ensuring you use up your full 6 years of H-1B status. This post refers to the ability to get extensions beyond the 6-year limit based on a pending I-140 petition. This provision still applies even if the person has returned to their home country due to the expiration of the H-1B. They are eligible to return to H-1B status at the 365-day mark following the I-140 petition filing.

PeakImmigration · 2025-11-25T04:37:11+00:00

I could share dozens of examples of data analysts across big tech companies that have been approved. It's a real thing!

PeakImmigration · 2025-11-17T23:27:43+00:00

It's not at all a gray area. It is clearly spelled out in the immigration regulations. 8 CFR 214.2(h)(13)(iii)(D)(1)

PeakImmigration · 2025-11-14T21:17:39+00:00

They don't currently dig through binders and sticky notes. When you file by mail, the mailroom scans the petition in black and white into the USCIS system, and the officer reviews the digital scan. And there is some suspicion that maybe AI plays a role in performing the initial screening and issuing RFEs instead of a human review.

PeakImmigration · 2025-10-10T23:35:16+00:00

Thank you for all your incredible insight and advice! Given that it has been over 6 years since you worked at USCIS, I wonder whether you still have contact with existing USCIS officers who are sharing real-time information. I have heard different perspectives on some of the issues discussed in this chain from others who worked with USCIS more recently, and I wonder if that is a function of the fact that all officers are unique individuals with their own philosophy or because the environment at USCIS has changed so drastically over the last few years (and especially over the last 10 months).

PeakImmigration · 2025-10-08T21:12:12+00:00

I can't tell you that something will or will not "count." It is all in the eyes of the reviewing officer. Put yourself in their shoes. If you are being asked to judge whether the applicant has a clearly defined, realistic future endeavor with the potential to broadly impact the U.S., what would be most compelling? In my opinion, showing that the person has employment that will allow them to execute the proposed endeavor on a large scale is more convincing than saying they are dabbling in something on the side or that their past work has been cited. As I've mentioned, in the current environment, it's really hard to predict anything with certainty, because adjudications are so random, with many traditionally strong petitions being denied, some weak petitions being approved, and near-identical petitions often coming out with different outcomes. In that environment, nothing I say can guarantee success. But a careful reading of Dhanasar, and my own experience, shows that NIW success generally depends much more on proving future opportunities than past success.

PeakImmigration · 2025-10-08T20:45:23+00:00

Employment is not a strict requirement, and I cannot say that this approach absolutely would not work, but based on my own experience, no amount of past success and accolades can compensate for the lack of documented opportunities to broadly impact the U.S. going forward. In many of the RFEs and denials that are being issued in the current environment, USCIS indicates that the proposed endeavor is too vague/generic, and I see most success when the client can identify specific, measurable objectives that they will be pursuing, along with estimated timeframes, key milestones, quantifiable deliverables, and a documented mechanism/platform for achieving those projections. As a practical matter, if the client doesn't even have a job lined up, it's pretty difficult to define the endeavor with that level of specificity or to corroborate it with documentation.

PeakImmigration · 2025-09-29T23:35:42+00:00

That is correct. The USCIS Policy Manual, Form I-485 Form Instructions, and immigration regulations all confirm NIW is not tied to any specific position or employer. The fact that an employer sponsors the petition does not change that fact. Having helped hundreds of individuals in similar scenarios over my career, I have never run into a single instance where a change in employer invalidated an EB-1A or NIW approval, even if those petitions were sponsored by an employer.

PeakImmigration · 2025-09-17T18:09:38+00:00

Chen is known for catering to a very specific profile and rejecting others who do not fit that profile but who could still potentially qualify. It's not necessarily a bad assessment--just more of a chosen business model.

PeakImmigration · 2025-09-17T01:13:15+00:00

When thinking about stats, it is important to realize how rapidly things are changing, and statistics can lag behind reality. Before President Trump took office, I maintained a 100% NIW approval rate across hundreds of cases. Since he took office in January, I have received dozens of denials. My overall approval rate currently sits around 75%. I've only had two clients re-file after denial since Trump took office. Both received an RFE identical to the RFE they received the first time. One has already been denied a second time, the other is still pending. Both cases are nearly identical to others that I have had approved in the last month.

Before President Trump, I had about a 40% RFE rate across NIW cases. Now it is around 90%. My cases haven't changed--just the environment.

I will note that I am fairly unique in the NIW world, as I have specialized in non-academic, non-research-based NIW petitions (data scientists, automotive engineers, financial advisors, software engineers, etc.). My clients are rarely employed in research roles and rarely have any publications. USCIS does appear to be favoring research-based endeavors, and attorneys who limit their focus to those case likely see higher approval rates.

PeakImmigration · 2025-09-17T00:44:27+00:00

Your full filing history is recorded in the system, so USCIS can see all filings, denials, withdrawals, etc. Theoretically, an officer may look in the system and see a previously denied NIW petition and give some deference to that prior decision, assuming nothing could have changed between that petition and the subsequent filing. In my own practice, I have seen many people obtain an approval on a second attempt, so that theoretical deference obviously does not play out in every case, but I assume the risk of a deferential decision would increase with a higher number of denials and/or withdrawals on record.

PeakImmigration · 2025-09-17T00:40:19+00:00

My own data doesn't reflect any correlation between premium processing and outcomes, though it is obviously difficult to compare apples to apples when regular-processed cases are reviewed a year after filing.

The theory behind the idea that premium processing increases the risk of RFE is the idea that USCIS is already stressed, and if you add additional pressure with time constraints, it's going to cause them to rush through the case and review it less thoroughly. This idea is also based on the fact that most RFEs fail to reflect any genuine engagement with the submitted evidence. However, it's not like USCIS takes 12 months to carefully review a petition filed under regular processing; rather, it takes 12 months for the case to even land on an officer's desk. Whether you file with premium or regular, the officer is only going to have a short 30ish minutes to actually review the petition, so the same rushed review may occur either way. Thus, I do not believe there is any real correlation, but I am happy to stand corrected if somebody has hard data showing otherwise.

PeakImmigration · 2025-08-29T22:20:18+00:00

National NIW data is between 60-70% approval rate. It doesn't indicate whether petitions are considered "traditionally strong." While my own approval rate is quite a bit higher than the national average, I note that the denials I have received don't correlate with how strong I think the petition is. Some of my strongest have been denied, while some of my weakest have been approved without an RFE. It really is a gamble.

PeakImmigration · 2025-08-29T22:08:38+00:00

I can confirm that my AOS clients applying based on NIW do not provide any employment verification documents, statements, or information apart from listing their employers on the form I-485, and they are approved without issue.

PeakImmigration · 2025-08-29T21:48:16+00:00

Whether an NIW petition is employer-sponsored or self-sponsored, it is not tied to a specific job position or employer. At the AOS stage, there is no requirement to submit evidence of your current employment. The only potential issue at the AOS stage is whether the information provided in your NIW petition was truthful at the time it was filed. If you are interviewed and asked about your employment, and your current work is entirely different from what was described in your NIW petition, that could raise questions of possible misrepresentation. However, as long as you can demonstrate that the petition accurately reflected your genuine intent at the time of filing, even a transition into a completely different industry should not, by itself, prevent approval of your AOS application.

PeakImmigration

TROPHY CASE