NIW Case Approved Following the Appeal of a Denial Decision by a Difficult NSC Officer

In November 2019, our firm filed an original I-140 petition under the NIW (National Interest Waiver) category. This petition received an RFE (Request for Evidence) in April 2020 from EX0214, one of the most difficult officers at the Nebraska Service Center (NSC), and this petition was unfortunately denied by this same officer in September 2020. However, due to the nature of the denial decision, our firm filed an appeal of the denial with the AAO (Administrative Appeals Office). In August 2021, the AAO saw fit to sustain the appeal and approve the case.

Original Petition

In the original petition, our firm included evidence showing how our client satisfies the three-prong NIW test set by the precedent Matter of Dhanasar decision. We emphasized that our client is doing significant and crucial work in the field of biochemistry, specifically related to pediatric oncology. Not only did we establish that such work has both substantial merit and national importance, but, throughout the record of our client’s achievements, we showed how they are well-positioned to advance and be successful in their continued research endeavor. Our client’s record of accomplishments included a Ph.D. in their field of expertise, over 400 citations to their 24 peer-reviewed articles in highly-ranked academic journals, and funding from significant governmental organizations and foundations. We also submitted evidence of our client’s employment as a research fellow at a prestigious U.S. university, their plans to continue their research work in the future, and multiple letters from experts confirming the impact that our client has made through their research.

Request for Evidence and Denial

After submission, our firm received an RFE notice from a very difficult NSC officer. In the notice, the officer acknowledged that our client satisfied the first two prongs of the NIW test, but indicated that insufficient evidence had been submitted to show that our client satisfied the third prong to warrant NIW approval. Despite the fact that the officer had provided no information about why the evidence we had submitted for this prong was insufficient and what kind of evidence they would require to satisfy this prong, we prepared an RFE response that included additional evidence from our client’s employers and other experts in the field that emphasized the unique and important nature of our client’s work and how this work offers sufficient benefits to the U.S. to warrant NIW approval. Despite our strong response, the officer ultimately issued a denial for our client’s petition. 

Appeal and Final Decision

In our review of the denial notice, our firm found that the basis of the denial was largely incoherent and not founded in logic or the requirements of the NIW category. The officer claimed that a petitioner may not satisfy the third prong of the NIW test unless they had been offered a permanent position, which is categorically untrue. NIW is a self-petitioned category and does not require any job offer for eligibility. The decision also indicated that a petitioner must demonstrate that they are irreplaceable in their field in order to satisfy the third prong, which is also not required for this category.

While we were not surprised by such a decision from this officer, we did find that the failure on the part of the officer to adhere to the adjudication standards set by the Matter of Dhanasar decision offered us firm grounds upon which to build an appeal case for our client. In our appeal brief submitted to the AAO, we pointed out the fact that the possession of a permanent job offer is irrelevant to the NIW classification. We also noted that, in requiring evidence that our client is irreplaceable in their position, the officer was applying an overly-heightened standard that is more akin to the requirements of an EB-1A case than an NIW case. We drew many comparisons to the original Dhanasar precedent decision and pointed out that, per the standards held by this officer, Dhanasar himself would have never been approved for the NIW category. We reiterated the evidence submitted with the petition and outlined how the evidence showed the importance of our client’s work, as well as the impact and national importance benefits that would be derived from this work. We argued that these factors, combined with our client’s unique skills, rendered it more beneficial to grant the national interest waiver than it would be to request our client to complete the labor certification process. 

The AAO, upon review of the petition and our appeal materials, agreed with our arguments and determined that they would sustain the appeal and approve the petition, thus enabling our client to move forward and take the next steps to obtain their green card.

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