NIW Case Approved Following the Appeal of a Denial Decision in TSC
2022-01-13, BY wegreened
In July 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) on September 27, 2021 from officer XM1690 and was unfortunately denied on February 6, 2020 despite our client’s strong petition. Our firm appealed this denial decision with the Administrative Appeals Office (AAO), and the appeal was sustained. The case was finally approved on November 10, 2021.
Original Petition
Our client, an Iranian Ph.D. candidate in the field of civil and water resource engineering at the time of filing, provided us with a multitude of evidence to show that they satisfy the three-prong NIW eligibility test. This evidence included our client’s M.S. degree in their field along with the U.S. degree equivalency test, 53 citations, 6 papers (5 of which were first-authored), funding from governmental organizations, and a clear statement of our clients’ proposed endeavor after obtaining their green card. We also submitted related evidence to inform the USCIS of our client’s long-term employment plans in the U.S. Furthermore, independent experts provided references discussing the impact our client has made upon the field, noting that “[Client]'s work has thus immediately been applied to gain a better understanding of ongoing hydropower projects, speaking to the value of his work.”
Request for Evidence and Denial
After almost a year, our client received an RFE from an officer at the Texas Service Center (TSC). In the RFE, the officer claimed that we had not submitted sufficient evidence to satisfy prong two and prong three of the NIW Matter of Dhanasar eligibility test. For the second prong, the officer claimed that our client failed to demonstrate a record of success in their field to render them well-positioned to advance their proposed endeavor, while their analysis of the third prong was generic and offered few details as to why this prong was not met. In our experience, the adjudicating officer was quite reasonable and had approved all the cases we had seen from them up to that point, so we prepared updated documentation to respond to the officer’s claims, specifically highlighting that the standards that they use for the second prong are more appropriate for an EB-1A case than NIW, and we included additional evidence of our client’s qualifications. We also identified the specific balancing factors for the third prong that our client satisfied to qualify for this prong.
Unfortunately, despite the officer’s record and our client’s strong petition, we eventually received a denial notice from this officer. The notice included the same language as the original RFE and issued the denial based on prong two and prong three of the NIW test.
Appeal and Final Decision
Our firm found the final denial notice highly inappropriate and unsatisfactory; specifically, we found that the officer had been negligent and limiting in their analysis of our client’s case. Specifically, the officer had failed to properly apply the analytical framework set forward by the Dhanasar precedent decision, choosing to focus on only a select number of the standards when considering our client’s case. Since such a limiting analysis constitutes an abuse of the officer’s discretion, we advised our client to appeal the denial decision with the AAO. In the appeal brief that our firm prepared, we first focused on how the officer’s exercise of discretion during adjudication was both materially deficient and inappropriately selective, as it focused on a record of success to establish eligibility, though the Dhanasar decision clearly states that a petitioner without evidence of success, progress, or interest from others may still satisfy the second prong. We also emphasized how our client does satisfy the requirements for prong two, even when we consider the limiting analysis the officer employed, and we outlined the submitted evidence to support our claims. We also reiterated our arguments from the original petition and RFE as related to prong three to show that our client does, in fact, meet multiple requirements needed to satisfy this prong.
In November 2021, we finally received confirmation from the AAO that, after reviewing all our submitted materials, our client’s case had been approved. The AAO agreed with our arguments and sustained the appeal, allowing our client to finally, after more than 3 years, to move forward with their immigration process and finally complete the steps to obtain their green card.
AAO Decision
See more AAO overturning our NIW denials issued by the USCIS
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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.
