NIW Denial Was Overturned after Our Appeal against TSC Officer XM2232

2025-12-07, BY wegreened

Case Summary:

NAILG filed the client’s EB-2 National Interest Waiver (NIW) I-140 petition on March 18, 2024. The petition presented the client as an advanced degree professional and an expert in pharmaceutical sciences. The proposed endeavor focused on designing, synthesizing, and developing drug nanocarriers for innovative drug delivery strategies aimed at managing and treating metabolic and infectious diseases.

In the petition, we framed the case around the Matter of Dhanasar three-prong test:

Prong 1: Substantial Merit and National Importance We demonstrated that the client’s nanocarrier work supports critical U.S. goals in advanced engineering materials, nanomanufacturing, and biotechnologies. These areas are federally recognized as critical and emerging technologies, and the endeavor directly contributes to national public health and technological leadership.
Prong 2: Well Positioned to Advance the Endeavor We documented the client’s strong research foundation, including peer-reviewed publications, first-author contributions, and a growing citation record. The petition emphasized that the client’s education, expertise, and demonstrated success placed the client in a strong position to move the endeavor forward in the United States.
Prong 3: On Balance, Waiver Benefits the United States We argued that the importance and urgency of the client’s work justified waiving the labor certification requirement, because the United States benefits from the endeavor regardless of the availability of U.S. workers in the field.

Request for Evidence (RFE) from Officer XM2232:

On August 28, 2024, USCIS issued an RFE signed by Officer XM2232. The RFE questioned all three Dhanasar prongs and imposed requirements that went beyond NIW standards.

Key challenges raised included:

Prong 1 Concerns The officer faulted the petition for not including a professional or business plan, not detailing “innovative and new techniques,” and not showing an ability to hire or employ U.S. workers for economic benefit. These demands are not required under Dhanasar and reflect an improper shift toward business-visa style criteria.
Prong 2 Concerns The RFE argued the record did not prove the client was well positioned, stating that citations were not “frequent” enough and that the client had not served as an “impetus for progress.” The officer also questioned why a Ph.D. was listed on a CV without a diploma at filing, even though the client relied on a qualifying master’s degree for EB-2 eligibility.
Prong 3 Concerns The RFE concluded that the waiver had not been shown to benefit the United States, tying this finding to the officer’s doubts about Prongs 1 and 2.

NAILG’s RFE Response:

NAILG prepared a thorough response explaining the officer’s legal errors and strengthening the evidentiary record. We emphasized that NIW petitions are evaluated under a preponderance standard, and that the officer was incorrectly importing heightened requirements.

Our response included:

Updated achievements and impact evidence We reaffirmed that the original filing already showed a credible record of success, including eight peer-reviewed journal articles (four first-authored) and at least sixty-eight citations at filing, with one article ranking among the top ten percent most highly cited in its journal.
Clarification of degree eligibility We explained that the client’s master’s degree met the advanced degree requirement. To address the officer’s confusion, we also submitted the Ph.D. diploma that was awarded after filing, along with a formal evaluation, making clear that the Ph.D. was supplemental rather than a filing basis.
Prong 1 reinforcement We showed that requiring a business plan or proof of hiring U.S. workers was a novel extra burden not supported by Dhanasar. We tied the endeavor directly to critical and emerging technology priorities and U.S. public health needs.
Prong 2 reinforcement We argued that the RFE improperly used EB-1A-style language. We supported the client’s positioning with expanded citation evidence, scholarly influence, and consistent expert letters praising the client’s contributions and future plan

Denial Issued by Officer XM2232:

Despite the detailed response, USCIS denied the petition, with the online denial reflected on November 27, 2024 and the formal decision dated December 2, 2024. The denial again signed by Officer XM2232 repeated the same flawed conclusions:

National importance not established USCIS minimized the endeavor’s connection to federally recognized critical technologies and treated the effort as too general despite clear evidence linking the work to national priorities.
Client not well positioned The officer dismissed the client’s publication record and citation impact using a standard closer to extraordinary ability, not NIW.
Waiver not beneficial on balance Because the officer denied Prongs 1 and 2, Prong 3 was rejected automatically rather than independently assessed.

The denial also included factual misstatements about the client’s education history, showing that the record had not been fully or fairly reviewed.

Appeal to the AAO and Reversal:

NAILG filed Form I-290B immediately after denial. The appeal was mailed on December 26, 2024 and received by USCIS on December 27, 2024. We requested a de novo review and argued that Officer XM2232 had abused discretion by applying a heightened standard and ignoring key evidence.

In the appeal, we emphasized:

The petition met the preponderance standard and should not have been judged by stricter EB-1A-type expectations.
The proposed endeavor advanced federally recognized critical and emerging technologies, proving national importance.
Objective impact data submitted in the RFE response placed the client among top performers in citation impact and research productivity, supporting strong positioning.
The denial mischaracterized the educational record even after corrections, showing factual and legal error.
On balance, waiving labor certification benefits the United States due to the value and urgency of the client’s nanocarrier research for public health.

NIW Approval and Outlook:

On April 30, 2025, the Administrative Appeals Office sustained the appeal and withdrew the Service Center’s denial. The AAO confirmed that the client satisfied all three Dhanasar prongs, finding that the endeavor had national importance, the client was well positioned to advance it, and granting the waiver would benefit the United States even if other qualified U.S. workers were available. Following the AAO decision, USCIS approved the I-140 petition, and the approval notice was received by the firm around November 20, 2025.

This case shows the real difference skilled advocacy makes after a denial. Officer XM2232’s decision imposed unsupported requirements and misread strong evidence, but NAILG’s appeal restored the proper legal framework and secured the approval the client had earned. We are proud to have guided the client through this difficult path and remain committed to defending deserving NIW petitions through every stage of the process.

The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 61,000 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 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.