USCIS Manual Changes for NIW

On January 15, 2025, USCIS updated its policy manual for National Interest Waivers (waivers of job offers for highly qualified noncitizens) relating to substantial merit and national importance. Notably, for STEM fields of importance, the possession of a Ph.D. effectively makes the normal factors automatically satisfied. Normally, the NIW applicant would need to demonstrate substantial merit and national importance through business, entrepreneurship, science, technology, culture, health or education. Merit may be demonstrated without economic impact such as general research which furthers human knowledge or pure science. Finally, there must be a balancing of interests which results that it would be beneficial to the United States to waive the requirement of a job offer and consequently waive the required permanent labor certification requirements.

Defining Particular Social Groups

On January 13, 2025, the U.S. Court of Appeals for the Sixth Circuit provided guidance on what is a particular group. First, the proposed group must share common characteristics which are either unchangeable or are fundamental to individual identities or consciousness such that those characteristics should not be required to change. Second, the group must be defined such that membership is delimited. Third, the group must be distinct enough to be perceived as a group by the relevant society. For more detail, see, Mateo-Exteban v. Garland, 2025 WL 80029 (6th Cir. Jan. 13, 2025).

Extraordinary Ability Updates

On October 2, 2024, USCIS provided a Policy Alert (PA-2024-24) to clarify the extraordinary ability criteria for determining if someone is a "person of extraordinary ability". Based on the clarification, certain criteria have been weakened: team awards can be considered as lesser nationally or internationally recognized prizes; past memberships are considered under the membership criterion; published material is not required to demonstrate value of work and contributions to satisfy the published material criterion. However, this clarification also required that non-artistic exhibitions will only be considered when supported under a claim of comparable evidence.

Reopening in Absentia Removal Orders

On September 17, 2024, U.S. Ninth Circuit Court of Appeals provided guidance on reopening removal orders issued in absentia. The Ninth Circuit requires the BIA to address the merits of the underlying application for relief, whether removability would be unconscionable, and the extent of the change of schedule occurring outside of the noncitizen's control. Furthermore, the BIA needs to explain its thinking related to wrong legal advice provided by the noncitizen's attorney. In particular, the Lozada factors for reopening a case based on attorney error are not required in cases showing exceptional circumstances. For more information, see, Singh v. Garland, 117 F.4th 1145 (9th Cir. Sept. 17, 2024).

L1-A Applications Need Detailed Job Descriptions

On September 13, 2024, the USCIS Administrative Appeals Office (AAO), denied L-1A status to a president of a hot pot restaurant because the job description was too generic and lacked credible details. AAO needed to understand what the "president" would actually do daily or weekly and what she would manage. AAO ignored organization chart of the company since the chart did not show that the president would actually supervise or control other supervisory, professional, or management workers. Promises of the future did not matter—key was situation at time of filing. For more detail, see, Matter of X, 32892638 (AAO Sept. 13, 2024).

Do Not Comingle Traced Legally Sourced Funds

On September 2, 2024, the USCIS Administrative Appeals Office (AAO) in the Immigrant Investor Program Office (IIPO) held that the petitioner must not commingle traced and proven legally sourced funds with funds that have not been proven legally sourced. For more detail, see, Matter of X, 27268927 (AAO Sept. 2, 2024) (IIPO)

Adverse Credibility Finding Reversed at BIA

On September 5, 2023, the BIA in El Paso, TX reversed an adverse credibility finding as clearly erroneous when petitioner provided appellate arguments persuasively explaining the Immigration Judge's concerns with respect to inconsistencies. Based on the whole record, BIA found a well-founded fear of persecution.