NIW Case Approval by the AAO (Administrative Appeal Office) Following Appeal of Denial Decision Issued by NSC Officer

2020-02-26, BY wegreened

On December 28, 2018, our firm filed an original I-140 petition under the EB-2 NIW (National Interest Waiver) category for our client. Six months later, the petition received an RFE (Request for Evidence) and subsequent denial from an officer at the Nebraska Service Center (NSC). We appealed the denial decision with the AAO (Administrative Appeals Office), who, based on a careful review of our client’s credentials and evidence, sustained the appeal and approved the case.


Original Petition


Our client, an Iranian national, petitioned for NIW as a Ph.D. candidate and expert researcher in the field of electrical engineering. His original petition included evidence of 15 publications, 95 citations, and 15 peer reviews for notable academic journals. In addition to a wealth of objective evidence of his accomplishments, our client supplemented his petition with a detailed statement describing his plans to continue his work in the U.S. and professional letters of recommendation confirming his unique impact upon his field. One independent advisory opinion attested: “…the United States relies on the work of [Client] […] to produce improved technologies for consumer electronics and other applications that have ubiquitous national value.”


Request for Evidence and Denial


In the RFE, the USCIS officer assessed that our client satisfied the first two prongs of the three-pronged NIW Matter of Dhanasar test but had not submitted sufficient evidence for the third prong. Based on wording of the RFE, we devised a comprehensive strategy to convince the officer that it would be beneficial to the United States to waive the job offer and labor certification requirements for our client’s case, thus meeting the requirements of third prong. We assembled objective evidence of the urgent nature of our client’s work as well as additional recommendation and testimonial letters with expert opinions confirming that our client’s highly specialized skills are worthy of national interest waiver. The officer’s response to our strong arguments and additional evidence was, however, a denial notice. EX0242 continued to acknowledge that our client’s proposed endeavor had substantial merit and national importance and that our client was well-positioned to advance his proposed endeavor, but he failed to be compelled to waive the labor certification requirements. Thus, the officer denied the case.


Appeal and Final Decision


In carefully reviewing the denial notice, we found that the notice was not only fraught with troubling errors but officer’s reasons for denial and descriptions of the failings of the petition were generic and unclear. Based on the language of the denial, we had strong reasons to suspect that the officer had not done his due diligence of reviewing the totality of the evidence, and that, in doing so, he had mischaracterized the nature and purpose of the third prong. We believed this gave us a firm basis to appeal this decision with the AAO, and we thus moved forward to prepare our appeal brief. Our appeal strategy was twofold: First, we focused on how the officer had clearly ignored USCIS standards and guidelines in the denial. We argue that, rather than weighing the benefits of requiring a labor certification against the benefits of waiving the job offer and labor certification based on the totality of the case, the officer focused only on selected evidence of our client’s past experience, which, while perhaps appropriate for first and second prong analysis, is ultimately irrelevant for the third prong. Second, we presented further arguments detailing our client’s satisfaction of the third prong and the impracticality of obtaining labor certification. We argued that it is clear that our client’s work provides significant benefits to the U.S.—as shown by his satisfaction of the first and second prongs of Dhanasar—but that the receipt of a labor certification is unfeasible due to his inherently temporary position and the complexity of his expertise, experience, and specialization.


Upon reviewing our arguments, the AAO reopened the case. They acknowledged that EX0242 was correct in his determination that our client satisfied the first and second prongs of the Dhanasar test but was incorrect in his assessment of the third prong. In their final notice, the AAO indicated that they were convinced by our arguments, and, thus, they sustained our appeal and approved our client’s NIW petition. Thus, as a result of our unwavering commitment to our client’s case and our strong legal strategies and arguments, our client is able to proceed to the next steps of his case and obtain his U.S. green card.

AAO Decision

See more AAO overturning our NIW denials issued by the USCIS

The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 40,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor), EB-2 NIW (National Interest Waiver) and O-1 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 more than one thousand approvals 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.