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

2020-06-04, BY wegreened

On September 21, 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 on July 12, 2019 by officer 0456 at the Nebraska Service Center (NSC). However, due to numerous problems associated with the denial decision, we appealed the decision with the Administrative Appeals Office (AAO), who, based on a careful review of our client’s credentials and evidence, sustained the appeal and approved the case.

Original NIW Petition
Our client petitioned for NIW as an expert researcher in the field of cardiology. His original petition included evidence of 28 publications and 140 citations. 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 continued increase in the prevalence of heart failure in the US cements it as one of the most serious threats to public health in the country. [Client’s] ongoing studies in the management of advanced heart failure should be highly encouraged in the interest of both the international community and the United States.”

Request for Evidence (RFE) and Denial
Following case filing, officer 0456 issued an RFE in which they challenged that insufficient evidence had been submitted to demonstrate that an approval should be granted and also raised an issue whether our client is well-positioned to advance the proposed endeavor. We prepared a comprehensive response, but the USCIS issued a denial notice on the case. 
Upon review of the denial, we concluded that not only had the officer clearly mischaracterized our client’s work, but he/she had also rendered a wholly superficial reading of the petition materials, thereby leading to misapplying the standards set by the NIW precedent decision.

Appeal and Final Decision
In carefully reviewing the denial notice, we found that the notice was not only fraught with troubling errors but the 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/her due diligence of reviewing the totality of the evidence, and that, in doing so, he/she had mischaracterized the nature and purpose of all the prongs. 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 the USCIS adjudicator denied our client’s petition by using an irrelevant medical license requirement as a justification. Second, we presented the AAO’s application of the first and second Dhanasar prongs to the case of Dr. Dhanasar demonstrating that the phrase “proposed endeavor” refers to the activity or goal that the beneficiary intends to pursue in the United States. We argued that our client's proposed endeavor is to continue his research on cardiac treatments and outcomes. 
Upon reviewing our arguments, the AAO overturned the denial decision. They acknowledged that our client satisfied all prongs of the Dhanasar test and the adjudicating officer was incorrect in his/her assessment. 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. As a result of our unwavering commitment to our client’s case and our strong legal strategies and arguments, 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

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