EB-2 NATIONAL INTEREST WAIVER FOR EXPERIENCED PILOTS

Harvey Law Group driving innovation and shaping the global immigration landscape

This time last year, Harvey Law Group (HLG) began receiving first approvals from the United States Citizenship and Immigration Services (USCIS) for the EB-2 National Interest Waiver (NIW) Programme for Experienced Pilots. After many months of legal research and planning, HLG was convinced this was a real opportunity – we did not let the growing rumours that it was simply unfeasible deter us.

Through hard work, HLG can now show a decent track record in assisting pilots (about 70% success rate). We proudly assist hundreds of experienced pilots and their families worldwide to obtain unconditional green cards via the EB-2 NIW programme, allowing them to live and work in the US.

HLG recently celebrated its 100th approval. This is a milestone we are incredibly happy with, yet it has not always been smooth sailing. We have had some very experienced pilots denied, and while we care about the success stories, we care more about the denials. Through patience and perseverance, we have managed to assist some of the clients originally denied to refile and obtain successes as a result.

Applying this programme to pilots is so new that we are always kept on our toes. We need to (i) be quick to adapt and adjust to changes in the industry; (ii) put clear and flexible internal processes in place to ensure that lessons learnt are shared across the firm efficiently; (iii) question ourselves on a daily basis to favour innovative solutions; (iv) continue to educate ourselves; and (v) think of various ways to educate the USCIS officers reviewing our clients’ applications.

Communications we have with USCIS officers (who are not lawyers) demonstrate how complex the law is, and it is often our job to educate the officers, and to explain to our clients how we can help address concerns that officers may raise. There is no general USCIS guidance for this: each client case is considered individually. If we have learnt one thing in the past year, it is that this is not a one-size-fits-all programme.

We have managed to convince officers to change their mind after giving further explanations, which is always encouraging. For the past six months, we have also observed public recognition of our work, with more pilots coming to us after having made an initial submission themselves or via other lawyers. In such cases, we often need to work backwards to identify gaps and issues in initial petitions to try to overcome the issues, but if we can salvage the situation, we will.

We also now need to monitor how priority date retrogression impacts our clients. Until recently, priority dates were current, meaning that this was not a concern for pilots, but this changed at the end of 2022. Priority dates for immigrant visas issued under the EB category is currently February 15, 2022 – this effectively determines the applicant’s place in the queue for obtaining permanent residency, even if the national interest waiver has been approved.

Retrogression like the recent one is infrequent, yet it is not unprecedented. The recent retrogression is largely attributed to the COVID-19 pandemic which disrupted immigration operations and slowed down visa processing times. It is however important to understand that priority dates in the USCIS Visa Bulleting do not necessarily reflect actual waiting time since they can shift forwards or backwards, by a few weeks or months. Therefore, when one sees the May 2023 Visa Bulletin showing that the final action date is February 15, 2022, one cannot assume that the waiting time is 15 months.

The pilot shortage in the US is here to stay and so far, we do not see the attraction of this programme diminishing.