NIW Case Approval by the AAO (Administrative Appeal Office) Following Appeal of Denial Decision Issued by NSC Officer

On December 28, 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 from an officer at the Nebraska Service Center (NSC). We appealed the denial decision with the AAO (Administrative Appeals Office), who, based on a careful review of our client’s credentials and evidence, sustained the appeal and approved the case.

Original Petition

Our client, an Iranian national, petitioned for NIW as a Ph.D. candidate and expert researcher in the field of electrical engineering. His original petition included evidence of 15 publications, 95 citations, and 15 peer reviews for notable academic journals. 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 United States relies on the work of [Client] […] to produce improved technologies for consumer electronics and other applications that have ubiquitous national value.”

Request for Evidence and Denial

In the RFE, the USCIS officer assessed that our client satisfied the first two prongs of the three-pronged NIW Matter of Dhanasar test but had not submitted sufficient evidence for the third prong. Based on wording of the RFE, we devised a comprehensive strategy to convince the officer that it would be beneficial to the United States to waive the job offer and labor certification requirements for our client’s case, thus meeting the requirements of third prong. We assembled objective evidence of the urgent nature of our client’s work as well as additional recommendation and testimonial letters with expert opinions confirming that our client’s highly specialized skills are worthy of national interest waiver. The officer’s response to our strong arguments and additional evidence was, however, a denial notice. EX0242 continued to acknowledge that our client’s proposed endeavor had substantial merit and national importance and that our client was well-positioned to advance his proposed endeavor, but he failed to be compelled to waive the labor certification requirements. Thus, the officer denied the case.

Appeal and Final Decision

In carefully reviewing the denial notice, we found that the notice was not only fraught with troubling errors but 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 due diligence of reviewing the totality of the evidence, and that, in doing so, he had mischaracterized the nature and purpose of the third prong. 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, rather than weighing the benefits of requiring a labor certification against the benefits of waiving the job offer and labor certification based on the totality of the case, the officer focused only on selected evidence of our client’s past experience, which, while perhaps appropriate for first and second prong analysis, is ultimately irrelevant for the third prong. Second, we presented further arguments detailing our client’s satisfaction of the third prong and the impracticality of obtaining labor certification. We argued that it is clear that our client’s work provides significant benefits to the U.S.—as shown by his satisfaction of the first and second prongs of Dhanasar—but that the receipt of a labor certification is unfeasible due to his inherently temporary position and the complexity of his expertise, experience, and specialization.

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