Overcoming Denial – A Strategic Appeal Secured Our Client’s NIW Approval and Reinstalled the Priority Date

2025-05-20, BY wegreened

At North America Immigration Law Group, we are dedicated to standing by our clients—even in the face of difficult denials. This recent success story showcases how our strategic appeal secured a client’s NIW I-140 approval and reinstated their priority date, reaffirming the strength of their case and our legal approach.


Case Background:

In October 2023, we filed a National Interest Waiver (NIW) petition under INA § 203(b)(2) for a client in the field of inorganic and environmental chemistry. The client’s proposed endeavor focused on developing nanostructured materials to remove emerging contaminants from water, including microplastics and radionuclides, with applications also extending to desalination and renewable energy—areas of growing concern for public health and the environment.

To support the petition, we submitted extensive documentation demonstrating the client’s contributions, including authored books, numerous peer-reviewed publications, and a consistent track record of peer review service. We clearly articulated how the client’s work met all three Dhanasar prongs: national importance, strong positioning to advance the endeavor, and benefit of waiving the labor certification requirement.

  • RFE and Denial

On February 2, 2024, USCIS issued a Request for Evidence (RFE), questioning the national importance and whether the client was well-positioned. We responded with strengthened documentation and updated expert letters, directly addressing the officer’s concerns. Despite this, USCIS denied the case on May 22, 2024. The denial was issued by Officer XM2148 and contained flawed reasoning. The officer minimized the value of the client’s publication and citation record, dismissed recommendation letters for lacking "corroborating facts," and improperly emphasized economic impact under the first prong—contrary to USCIS guidance.

  • Appeal and Victory


We filed an I-290B appeal to the Administrative Appeals Office (AAO) on June 11, 2024, meticulously arguing that the denial was legally and factually erroneous. Our appeal highlighted the officer’s misapplication of the Dhanasar framework and unsupported dismissal of critical evidence. We emphasized that the officer’s standard would not have even met the benchmark by s et by the petitioner in Dhanasar.

On November 18, 2024, the AAO sustained our appeal, fully overturning the officer’s findings. USCIS issued the final approval on March 20, 2025—validating both the strength of the client’s qualifications and the legal accuracy of our strategy.

 

Our General Strategy After a Denial 

While every case is unique, our firm typically recommends pursuing both an appeal and a refile for denied NIW cases. There are three primary reasons for this two-pronged approach:

  1. Preservation of the Priority Date: If the appeal is sustained, the original priority date is reinstated, which can be crucial under retrogressed visa bulletin conditions.
  2. No Additional Attorney Fee: For clients under our Approval or Refund® service, we handle the appeal and refile at no additional attorney fee.
  3. Filing Fee Support: We also cover the USCIS filing fee for one of the two filings—either the appeal or the refile—further easing the burden for our clients.


This strategy allows us to respond to adjudication trends while safeguarding clients’ immigration timelines. We are proud to support our clients through every stage of the process, and this case exemplifies how perseverance, experience, and legal precision can turn a seback into a success.


1. Appealing the I-140 Denial to AAO (The Administrative Appeals Office (AAO):

 
Filing an appeal allows us to formally challenge the denial and seek to have the decision overturned. If the appeal is successful, your original I-140 will be approved, and you will retain your original priority date—a significant advantage given current visa bulletin trends.

While AAO appeals for NIW cases historically have low approval rates (combined sustain and remand rates have ranged from 8.1% to 25% over the past five years, with 12.6% in FY2023 per USCIS data), our office has achieved significantly better outcomes. In FY2023, our NIW appeals under the “approval or refund” service had a 64.24% success rate, including both sustained decisions and approvals after remand.
 
As previously mentioned, we recently succeeded in overturning an NIW denial where the officer improperly focused too narrowly on economic impact under Prong 1—despite USCIS guidance that economic benefit is only one possible form of national importance, not a requirement. This demonstrates our ability to spot and effectively challenge flawed reasoning in USCIS decisions.

 
2. Refiling a New I-140 Petition: 
 

We can also prepare to file a new I-140 petition. This serves as a safety net, ensuring that if the appeal does not result in a favorable outcome, we have proactively taken steps to maintain your path to permanent residency without substantial delays. The approval chance of a newly filed case is much higher than an appeal. Based on the USCIS data, the overall NIW approval rate for Fiscal Year 2023 is approximately 79.6%. For more information, please see here. Based on our own cases, refiled NIW cases have a 100% approval rate in FY2023.

 
In the refile, we strongly recommend avoiding premium processing if possible. Based on our extensive experience, premium processing significantly increases the risk of receiving an RFE or denial. This is often because adjudicating officers under strict 45-day deadlines may not have sufficient time to thoroughly review complex evidence and instead rely heavily on pre-written templates. This can lead to oversimplified or boilerplate reasoning, even in well-documented cases.


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.


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