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NIW Denial Overturned after Appeal to AAO (Administrative Appeal Office)

2020-03-06, BY wegreened

We submitted an NIW petition to the Texas Service Center, which was denied following a Request for Evidence (RFE). However, due to numerous problems associated with the denial decision, we appealed the decision with Administrative Appeals Office (AAO), which sustained the appeal. 

 


NIW Petition

 

Our client is a professor specializing in computer science working outside the U.S. At the time of case filing, this client’s numerous professional accomplishments included 33 peer-reviewed journal articles, which gathered 586 citations. We further supported our client’s petition with evidence describing the nature of our client’s field of expertise and strong professional testimonials attesting to the importance of our client’s work. One expert, for example, affirmed: “As a prominent name in the field of computer science, [client] has made enormous strides in utilizing computer science to support biomedical technology and digital forensics. He has expanded the frontiers of the field through his discoveries and novel contributions. It is clear that [client’s] work is of major value to the field and to the larger scientific community.”

 


Request for Evidence (RFE) and Denial

 

Around 7 months after the case filing, the USCIS issued an RFE in which raised an issue whether our client’s proposed endeavor has substantial merit and national importance. The primary challenge was based on the fact that our client was outside the U.S. at the time of case filing without a job offer. We prepared a comprehensive response, but despite our best effort and the strength of our client’s case, the USCIS issued a denial notice on the case. 

 

Upon review of the denial, our attorney discovered that the adjudicator (XM 1313) ignored USCIS standards when denying the petition and misinterpreted the phrase “proposed endeavor” and consequently misapplied the Dhanasar framework, yielding a first-prong analysis with virtually no substantive relevance to the requisite considerations as set forth in the precedent decision.  

 

 

Appeal

 

Based on the clear errors on the part of the adjudicating officer, we suggested the client to appeal the denial decision. We prepared an appeal that systematically disputed the claims outlined in the denial decision, thereby proving that if all the evidence were considered and interpreted properly, it would be clear that our client’s case meets the NIW requirements and should be approved. 

 

We strongly refuted the adjudicator’s mischaracterization of our client’s employment and demonstrated his standing in comparison with the evidence required to a sustained appeal under the precedent Dhanasar decision. The evidence submitted shows that his proposed endeavor has both substantial merit and national importance. The United States will certainly benefit from computer science and engineering activity of the precise kind that he seeks to conduct in the United States. Moreover, his expertise in this field makes him an ideal candidate to conduct this research and development in the United States. 

 

We also pointed out in our appeal letter that our client’s proposed endeavor is very important for the United States. The loss of American competitive advantage in this sector would significantly disadvantage the United States, which clearly demonstrates that the United States would benefit from client’s continued work even if other qualified workers are available. It would therefore be beneficial for the United States to waive the requirement of a job offer for our client.

Convinced by our arguments, the AAO found there is sufficient evidence to reopen the case. With our hard work and effective legal strategies, we assisted our client toward a successful NIW appeal despite being faced with an officer who mischaracterized the Dhanasar framework.



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 16,000 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 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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