Our EB1B appeal sustained and the decision of an NSC officer was overturned

On June 11, 2018, our firm submitted an I-290B Notice of Appeal or Motion with the Administrative Appeals Office (AAO) concerning a denial decision on our client’s I-140 petition under the category of EB-1B Outstanding Professors or Researchers. The AAO saw fit to agree with the arguments we outlined in our appeal. They subsequently reopened the case and approved the EB-1B case on March 5, 2019.

EB-1B Petition, Notice of Intent to Deny, and Denial

In the NOID issued by NSC on our client’s original EB-1B filing, the adjudicating officer acknowledged that the beneficiary satisfied three out of the four regulatory criteria originally claimed in the EB-1B petition materials (exceeding the minimum requirement of two satisfied criteria). However, at the Final Merits Determination (FMD) stage of the evaluation, the officer claimed that our client did not sufficiently demonstrate that her accomplishments are internationally recognized as outstanding despite having satisfied more than the minimum number of regulatory criteria. Our client and her employer submitted a response to the NOID to address the officer’s concerns and to further demonstrate her outstanding accomplishments, but the officer proceeded to deny the case, stating reasons identical to those stated in the NOID.

Appeal

The arguments that we presented for the appeal were twofold. Firstly, we provided additional, supplemental evidence to demonstrate that the original evidence submitted for the petition did sufficiently demonstrate that our client had made outstanding contributions to warrant her place at the top of her field of expertise. We reinforced the data presented in the original petition with our own statistical analyses to highlight that our client’s peer review and editorial experience (editorial board member of 3 journals and at least 40 completed reviews as of her priority date), citation record (121 citations at the time of filing), and publication record (11 scientific publications, 10 of which had been submitted with the original filing) demonstrated that her productivity in her years of work and the impact of her work as verified by her citation record far exceeds that of similar scientists in her field of expertise, thus proving her international recognition as an outstanding scholar in her field.

Following these arguments, we clearly and systematically outlined the manner in which the adjudication officer grossly misapplied regulatory language and intent to deny the client’s EB-1B petition. In adjudicating EB-1 petitions, the USCIS employs a two-part analysis, wherein the first part is a determination of whether the beneficiary meets at least the minimum number of regulatory criteria for the classification in question and the second part (FMD) serves as an evaluation of whether, by a preponderance of all the evidence in totality, the immigrant ultimately meets the high standard that the relevant classification entails. USCIS regulatory language clearly states that the criteria are meant to serve as the primary means by which the USCIS should consider whether international recognition has been achieved, meaning that if the minimum number of criteria are deemed to be satisfied, the beneficiary has demonstrated his or her international recognition and outstanding accomplishments. The FMD step of the adjudication process, in turn, serves to determine whether there exist any other obvious disqualifications that would render the beneficiary ineligible for the classification sought.

In our client’s case, the officer misapplied the purpose of FMD in that they used this section to claim that our client was not qualified for EB-1B despite having satisfied the regulatory criteria and, while doing so, failed to provide clear and specific reasons why the satisfaction of the regulatory criteria was not deemed a sufficient barometer for obtaining EB-1 classification. Rather than applying FMD as an overview of and final check on eligibility, the officer used this step as an opportunity to establish his/her own arbitrary eligibility threshold wholly separate from the regulatory criteria.

In our appeal, we supplied the AAO with a step-by-step analysis showing why such an approach to EB-1 adjudication is incorrect and out of line with the regulatory language and regulatory intent, citing numerous precedent and nonprecedent case decisions that demonstrate how to properly apply FMD (and thereby demonstrate how this officer’s utilization of FMD was an abuse of his/her case adjudication discretion).

Appeal Decision

The AAO, having reviewed our arguments, saw fit to reopen the case and reevaluate the submitted evidence. On the first step, the AAO confirmed the analysis of the original officer and concluded that our client did indeed provide sufficient evidence to satisfy at least two regulatory criteria. Upon a reevaluation of the totality of evidence, including the prestige of the journals in which our client has published, her publication and citation records, peer review, and submitted reference letters, the AAO determined that the submitted record establishes the reach and impact of our client’s work, thereby verifying that she is internationally recognized in her field of expertise. As a result, our effective legal strategies, in conjunction with the client’s outstanding record, provided the AAO with sufficient cause to sustain our appeal and approve the case.