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AAO Sustained Our EB-1A Appeal and Overturned the Decision of an NSC officer

2019-05-06, BY wegreened

On April 15, 2019, our firm received a notice from the Administrative Appeals Office (AAO) concerning our client’s I-140 petition under EB-1A Alien of Extraordinary Ability. Originally filed on January 3, 2017, this petition was denied by the Nebraska Service Center (NSC) despite our strong original petition and RFE (Request for Evidence) submission. Due to errors clearly evident in the RFE and denial decision, we submitted an appeal to the AAO and, after careful review of our arguments and the original petition, the AAO sustained the appeal.



Original Petition


Our client, an expert in the field of neurosurgery, is originally from India and is in the U.S. working as a professor and researcher. At the time of his case filing, his exceptional professional accomplishments included at least 34 peer-reviewed scientific articles (9 of which had been cited at extraordinary rates), one book chapter, one U.S. patent, and at least 233 citations according to Google Scholar. We further supported our client’s petition with evidence describing the nature of his field, statistical analyses discussing the prominence of his citation record and of the journals that published his work, and strong professional testimonials attesting to the impact of his work. One expert, for example, said the following: “[Client] has provided nothing short of a breakthrough in DBS surgery, significantly increasing the likelihood of achieving the optimal electrode placement the first time.”



Request for Evidence and Denial


In the initial RFE, the USCIS officer (NSC #0317) acknowledged that sufficient evidence had been submitted to demonstrate that our client satisfied two of the three claimed criteria, but the officer requested additional evidence to satisfy the criterion of original contributions of major significance. Based on the language of the RFE, however, it was clear that the officer had not carefully considered all the submitted evidence, as all the documentation requested had been included in the original filing. In our response, we therefore emphasized the previously-submitted record and supplemented it with additional citatory data and ranking information concerning our client’s impact and productivity, thus demonstrating that our client had both made outstanding contributions of major significance and obtained national/international recognition.


Despite our strong arguments and our client’s evidence, the USCIS answered our RFE response with a denial notice. In the notice, the officer did acknowledge that our client satisfied all three of the criteria claimed—modifying his/her initial stance in the RFE—but had failed to demonstrate sustained national/international acclaim at the Final Merits Determination (FMD) stage.



Appeal and Final Decision


The officer’s language and discussion of our client’s accomplishments in the denial decision displayed multiple violations of proper adjudication procedures. Based on this, we believed that we had a strong case to appeal with the AAO, and we prepared our appeal brief to submit for the AAO’s consideration. In this appeal, we focused primarily on two points in which we found the USCIS had improperly carried out its adjudication discretion: (1) the officer had inappropriately conducted the requisite field-wide comparison inherent to the EB-1A classification, and (2) the officer’s careless discussion of our client’s eligibility and evidence demonstrated a profound inattention to the full breadth of evidence submitted with our client’s case. We argue that, by arbitrarily comparing our client to a handful of selected individuals at the pinnacle of our client’s field, the officer improperly applied the EB-1A regulations and ignored countless non-precedent decisions in which the AAO indicated that EB-1A petitioners must be considered against their field as a whole. Similarly, by failing to acknowledge all but a fraction of the accomplishments submitted by our client, the officer again failed in his duty to examine each piece of evidence for relevance, probative value, and credibility, as is required by the regulatory statutes.


The AAO, having received our arguments, saw fit to reopen the case and conduct a de novo evaluation the submitted evidence. They acknowledged and confirmed the officer’s final position that our client satisfies at least three of the ten requisite EB-1 criteria and, in review of our client’s full record, concluded that our client is indeed internationally recognized in his field of expertise such as to qualify for the EB-1A designation. Thus, the AAO sustained our appeal and approved our client’s EB-1A case as a result of our effective legal strategies and the exceptional record of accomplishments held by our client.



The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 12,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor) and EB-2 NIW (National Interest Waiver) approvals, our firm has acquired substantial information about USCIS decisions, which gives us significant advantage over firms that only handle a small number of cases.

Based on hundreds of approvals every month and our close track of USCIS internal memoranda, AAO decisions, and judicial review decisions, we have unique insight into the USCIS adjudication trends. Not only do we apply this insight into our approaches to our clients' cases, but we also carefully review all RFEs (Requests for Evidence), NOIDs (Notices of Intent to Deny), approvals, and denials issued on our cases so that we can further increase our understanding of USCIS strategies and decision-making processes. With the insight, we are able to advise our clients on the best ways to proceed with their petitions.

While other petitioners and attorneys may still use templates to draft recommendation letters or petition letters, our clients' recommendation letters and petition letters are tailored to their individual credentials to best persuade a USCIS officer that our clients meet the requirements of the category they are applying under and therefore their petitions deserve to be approved. To provide the best EB-1 and EB-2 NIW services, our law firm only selects attorneys who have received their professional Juris Doctor degrees from the top law schools in the U.S. and who have garnered rigorous analytical skills through years of experience.


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