NIW Case Approved Following Two RFEs and an Appeal of a Denial Decision in NSC

NIW Case Approved Following Two RFEs and an Appeal of a Denial Decision in NSC

In November of 2018, our firm prepared and filed an original I-140 petition under the EB-2 NIW (National Interest Waiver) category. This petition received an RFE (Request for Evidence) in June of 2019 from officer EX0633, a second RFE in November of 2019 from officer EX0957, and was eventually denied in March of 2020 despite our clients’ strong petition by EX0957. Our firm appealed this denial decision with the Administrative Appeals Office (AAO). The case was finally approved in August of 2021.

Original Petition

Our client, an Indian MBBS holder with expertise in internal medicine, presented a strong case for their eligibility under the EB-2 NIW category. As part of their petition, we submitted to the USCIS evidence of their 24 citations, 4 peer reviewed articles (along with evidence to show which articles were highly cited and published in high ranking journals) and 2 completed reviews. To confirm their eligibility to conduct clinical work in their field, we submitted evidence of their having completed all three steps of the USMLE, passed the ECFMG, and satisfied all the requirements to obtain their full and unrestricted medical license in their state of intended practice. Furthermore, we included clear information about our client’s proposed endeavor, including evidence showing how they intended to continue their research and publication efforts, as well as their clinical duties. Finally, to supplement the objective evidence, we submitted references from independent experts regarding the significance of our client’s work. These experts noted that, “there is undoubtedly inherent value to [Client]’s field of research, which indicates that supporting it must be a priority.”

Request for Evidence and Denial

Our client received their first RFE in June of 2019. This request from the USCIS only asked that we submit evidence of our client’s medical license and issued no other challenges to the submitted evidence. We therefore prepared a response that showed further evidence of our client’s eligibility for a medical license, as well as the medical license itself, which our client had received between case submission and the RFE being issued. 

Later, after our response had been submitted, our firm received a second RFE notice for our client. This RFE was issued by a different officer than the one that had issued the first RFE, and it challenged all three prongs of the NIW standard test. The officer broadly indicated that clinical work does not meet the requirements for Prong 1 of the NIW test and claims that our client’s successes during their training and education are not sufficient to show that they are well-positioned to advance their proposed endeavor, with successes as a physician being required to satisfy Prong 2. Our firm also prepared a response to these challenges, arguing that our client plans to conduct both research and clinical work in their field of expertise and that the record shows that our client has already made an impact in their field, which clearly has substantial merit and national importance due to the nature and reach of their work. We also assert that NIW does not require showing achievements while employed as a physician to qualify and that our client has many pieces of submitted evidence to show that their achievements throughout their career have prompted them to receive multiple job offers for permanent physician positions, thus showing that our client is in a very good position to advance their proposed endeavor. Finally, we argue for Prong 3 and provide evidence that our client’s work is critically important and too highly specialized for labor certification to be required. 

After receiving our response, our client’s petition was unfortunately denied by the same officer that issued their second RFE. The officer maintained that our client did not satisfy the three NIW prongs. 

Appeal and Final Decision

Upon reviewing the denial, we found that the officer dismissed much of the evidence of record outright and misapplied many of the Dhanasar standards in their adjudication. We determined that our client did have a good basis of an appeal, and we proceeded to prepare an appeal brief for the AAO on their behalf. In our arguments, we review all of the submitted evidence and how it shows that our client is qualified for NIW. For Prong 1, we discuss how it is unclear how the standards set by the officer demonstrate national importance, but even so, our client did satisfy these requirements with their original filings, showing that they are highly cited in their field and their work has generated positive discourse in the field. For Prong 2, the adjudicator claimed that since our client’s proposed endeavor included clinical work, our client must also be fully eligible to practice medicine in order to be well-positioned to advance their proposed endeavor. However, we point out that there is no such requirement in the Dhanasar decision or immigration regulations, and, moreover, our client had received a job offer for a physician position as of the time of filing, thus indicating that they must be well-positioned to advance their proposed clinical work. The officer clearly ignored this, as well as many other factors called for in a proper, multifaceted approach to NIW adjudication. Finally, we addressed the Prong 3 analysis and demonstrated how it is impractical for our client to obtain a labor certification and that the benefits to be derived from their continued work in the U.S. far outweigh the need for the labor certification process.

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