Appeal Case Study: NIW Appeal Dismissed due to Insufficient Evidence on Exceptional Ability

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as an alien of exceptional ability. The petitioner seeks to employ the beneficiary as its president. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States.

USCIS Decision: : The petitioner does not satisfy the criterion it claims:

Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

AAO Decision: The Office opines that informal reference letters from the alien’s immediate circle of colleagues and clients prepared in support of the petition are not sufficient to satisfy the criterion claimed. AAO states that while the recognition obviously need not rise to the level of a lesser nationally or internationally recognized award or prize as required for classification as an alien of extraordinary ability pursuant to section 203(b)(1)(A) of the Act, the petitioner must demonstrate some type of formal recognition issued independently of the preparation of the petition in order to meet the criterion.

AAO therefore concludes that the petitioner has not sustained the burden of prof. The denial is without prejudice to the filing of a new petition by a United States employer accompanied by an alien employment certification certified by the Department of Labor, appropriate supporting evidence and fee.

from Chen Immigration Law Associates

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

Our Ten Thousand I-140 Approvals Provide Unprecedented Insight into the USCIS Adjudication Trend

With more than 47,000 EB-1A, EB-1B, EB-2 NIW and O-1 cases approved, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

We Have Helped Hundreds and Thousands of Clients with Credentials and Backgrounds Similar to Yours

With our exceedingly large number of successful petitions, no matter what credentials you have, no matter your background and field of expertise, no matter your visa status or nationality, chances are we have helped hundreds or even thousands of clients just like you. Our clients are usually impressed with how well we understand their research and work. Our insight and understanding stems from the fact that we have handled many cases with elements similar to yours already, and this helps us devise the best strategies for each individual petition.

Vast Majority of Clients Came to Us Because of Referrals

For years, our firm has attracted new clients based solely on word of mouth, recommendations, and the positive collaboration experiences shared with them by their friends and family. We take pride in our reputation and work hard to ensure that we provide a green card application experience that our clients are happy to share with their friends and colleagues. That is how our approved cases grew from 600 in 2013 to over 47,000 in 2023.