NIW Case Approved Following the Appeal of a Denial Decision by a TSC Officer

2022-01-13, BY wegreened

On November 13, 2018, our firm filed an I-140 petition under the NIW (National Interest Waiver) classification. On June 19, 2019, this case received an RFE (Request for Evidence) from XM1321, and, unfortunately, the case was denied after a strong RFE response from our specialized attorneys. However, our firm appealed the denial decision with the AAO (Administrative Appeals Office), who sustained the appeal and decided to approve the case on July 8, 2021. 


Original Petition

In our client’s original I-140 petition, our firm prepared a concise and persuasive petition package that outlined her records of achievement and satisfied the EB-2 NIW category requirements. We included documentation of our client’s U.S. Ph.D. degree in the field of Civil Engineering, her 17 journal and 3 conference publications (5 and 1 first authored, respectively), 279 citations, 30 reviews, and funding from multiple national and international organizations. We also highlighted how, of our client’s publications, 6 were published in highly ranked academic journals and 12 had been highly cited in their years of publication. We also submitted information about the proposed endeavor of our client, who worked as a postdoctoral researcher at the time of filing, and showed how she expected to continue her research in her field of environmental engineering after receiving her green card. In addition to the plethora of objective evidence, multiple independent experts provided recommendation letters highlighting the importance of our client’s work in her field, noting that “[Client]’s research is changing the way that we approach food waste treatment, which is an important topic around the world and in the United States in particular.

Request for Evidence and Denial

Around 7 months after we had submitted our client’s original petition, our firm received an RFE from an officer at the Texas Service Center (TSC). In the RFE, the office challenged the second and third prongs of the Matter of Dhanasar NIW test, while they acknowledged that the first prong and the advanced degree requirements had been met. Although we had already submitted substantial evidence of our clients’ eligibility, we started to prepare an RFE response with additional materials of our client’s eligibility; we also point out the officer’s apparent mistakes in applying EB-1A eligibility standards to the NIW category. 

When we eventually received the denial notice from this officer, we found that the officer had not shifted in their assessment of the case, and still held firm to the belief that our client had not submitted enough evidence to show that she was well-positioned to advance her proposed endeavor (second prong) or that it would be more beneficial to grant the national interest waiver rather than requiring our client to complete the labor certification process (third prong).


Appeal and Final Decision

When we conducted a review of the final denial decision, we found the officer’s approach to our client’s case to be very troubling. Indeed, we concluded that the USCIS had neglected its responsibilities in several ways while adjudicating this decision. First, the officer had failed to properly apply the analytical framework set forth in Dhanasar, instead using evidentiary standards that effectively held no legal basis. Secondly, the officer failed to consider our client’s proposed endeavor and dismissed several pieces of germane evidence from their adjudication. Finally, the officer had failed to properly apply the requisite standards of proof for immigration petitions, again rejecting several pieces of evidence based on inappropriate binary judgements. 

Our firm strongly felt that the abundance of errors found in the denial notice constituted an abuse of the discretion afforded to the officer, and that these facts gave us a solid basis to appeal this denial decision with the AAO. We therefore drafted and submitted an appeal brief in which we highlight the errors in the officer’s approach to our client’s case and the inappropriate dismissal of key pieces of evidence submitted with the petition. We also pointed out that if the officer had properly reviewed and interpreted the totality of the evidence submitted with the case, our client’s materials would have undoubtedly shown that she meets the requirements of the Dhanasar three prong test. Fortunately, the AAO agreed with our arguments and determined that they would sustain the appeal and approve the petition. Thus, after several years, our client was able to move forward with her case and take the next steps to obtain her 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.