NIW Approval Following the Appeal against TSC Officer XM1136

Case Summary:

At North America Immigration Law Group, we recognize that obtaining a green card through the National Interest Waiver (NIW) can be a challenging journey, even for individuals with impressive qualifications. When faced with a denial, it’s crucial to have skilled legal representation to address USCIS’s concerns and present a compelling case for approval. A recent example of this involves an expert in organic chemistry, whose case demonstrates how our strategic approach helped her successfully overcome an I-140 denial and secure approval.

• NIW Petition

Our client, a distinguished scientist specializing in the development of environmentally friendly synthetic methods for nanomaterials and organic compounds, sought an EB-2 NIW green card to continue her groundbreaking work in the United States. Her research, which focuses on the creation of carbon dots and zero-dimensional nanoparticles with medical and biological applications, as well as the development of chemical and biosensors, has the potential to significantly advance U.S. interests in areas like green chemistry, environmental remediation, and biosensing technologies.

In her I-140 petition, we argued that our client’s contributions met the criteria for the NIW, emphasizing the national importance of her work and her ability to lead her research efforts independently. We also argued that our client’s contributions met the criteria for the NIW, emphasizing the national importance of her work and her ability to lead her research efforts independently.

• Request for Evidence (RFE) and Denial

Despite her strong academic credentials—such as 54 citations, 5 published papers (3 as first author), and recognition from peers—USCIS issued a Request for Evidence (RFE), challenging whether client’s work had both substantial merit and national importance. Additionally, the RFE raised concerns about whether the client was well-positioned to advance her proposed endeavor in the U.S.

In response, we submitted a comprehensive RFE package that included an updated citation record, a detailed personal statement outlining her future research plans, additional independent citations of her work, 3 new recommendation letters from respected experts in her field, and evidence of the implementation of her work through contracts, licenses, and technology transfer agreements. We also provided proof of her recognition in the scientific community, including awards, invitations to present at conferences, and media coverage.

Despite these efforts, USCIS denied the I-140 petition. The denial cited concerns over the client's lack of a formal job offer and questioned whether she could effectively advance her research in the U.S. The officer also criticized the limited number of letters from U.S.-based experts, despite the fact that we had provided detailed letters of support from internationally recognized authorities in the field.

We found the denial to be unreasonable and misinterpreted the intent of the National Interest Waiver. The officer’s insistence on a formal job offer contradicted the core purpose of the NIW, which allows for the waiver of the job offer requirement for individuals whose work is deemed to be in the national interest. Additionally, the officer imposed an overly strict standard, requiring our client to demonstrate a level of influence in the field that exceeded the criteria outlined in the Dhanasar framework.

It is worth mentioning that, when we prepared the appeal for the original filing, we submitted the same original package as a separate NIW refile petition concurrently; the refile case got approved later on in a few months after it was filed.

• Appeal & Approval

In response to the denial, we filed an appeal with the Administrative Appeals Office (AAO), thoroughly addressing the officer’s concerns. We argued that the decision was based on an incorrect interpretation of the NIW requirements, specifically regarding the necessity of a job offer and the degree of impact our client’s work needed to demonstrate. We also emphasized that the evidence we submitted clearly demonstrated the national importance of her work and her ability to contribute significantly to U.S. research and development efforts.

Our appeal highlighted the client's substantial body of work, her future plans to advance U.S. interests in key scientific fields, and her broad recognition from the scientific community. We pointed out that the officer had failed to appropriately consider the compelling evidence, including the high regard in which she is held by her peers, the implementation of her research, and the potential for her work to positively impact U.S. industries and the environment.

In a favorable outcome, the AAO sustained our appeal and overturned the initial denial. The AAO recognized that the officer had applied an unnecessarily high standard of evidence and had not given proper consideration to the full scope of the supporting materials. The I-140 petition was ultimately approved, allowing our client to continue her work in the United States and further contribute to the advancement of green chemistry and biosensing technologies.

• Our Goal

This case underscores the importance of a well-prepared and thoroughly supported petition, as well as the value of expert legal counsel in navigating the challenges of the U.S. immigration process. At North America Immigration Law Group, we are committed to ensuring that our clients’ extraordinary contributions are recognized, even in the face of difficult denials and bureaucratic hurdles. The successful appeal in our client’s case highlights our dedication to challenging unjust decisions and securing positive outcomes for our clients, enabling them to continue making impactful contributions to U.S. society and beyond.

Our Firm’s Approach After a Denial:

With the USCIS NIW approval rate dropping to 62.78% in the first quarter of FY2025 (see here), denials are becoming more common—even for otherwise strong cases. That’s why it’s essential to understand how your attorney can support you strategically and proactively after a denial. At our firm, we don’t view a denial as the end of the case. We carefully analyze the officer’s reasoning and advise most clients to pursue both a refile and an appeal when appropriate.

Although appeal approvals are rare—of the nearly 1,400 AAO NIW appeals filed in FY2024, only 15 were sustained and 90 remanded (see here) —an appeal offers a key benefit: it preserves your original priority date. This can be critical if your appeal is sustained, as it may allow you to file your I-485 adjustment of status sooner, without waiting for a new priority date to become current.

Because we believe in the strength of our cases, for clients under our Approval or Refund® service, we pay the USCIS filing fee for either the appeal or the refile. We are committed to standing by your case and giving it every possible opportunity to succeed.