Appeal Successful for Denied NIW
According to published data, over the last five fiscal years, the Administrative Appeals Office (AAO) has sustained (approved) 25 out of 473 appeals (approx. 5%) in the I-140 National Interest Waiver category (I-140I). This suggests that AAO employs a strict review of cases and typically agrees with adjudicating officers at USCIS service centers. For this reason, many clients with denied petitions, even if they feel they received an unfair decision, elect to re-file their cases with USCIS, often after their record hasimproved. However, as shown by a recent client experience at Zhang & Associates, P.C., appeals are sometimes necessary.
In general, theI-140 National Interest Waiver (NIW) category requires a beneficiary to show that (1) they work in an area of substantial intrinsic merit; (2) the benefit of their work will be national in scope; and (3) the national interest would be adversely affected if they were required to obtain a labor certification. Satisfaction of this third requirement depends on the beneficiary’s ability to showthat they have a history of achievement with “some degree of influence” on their field as a whole.
With the assistance of Attorney Andrew McCusker, our client, a computational engineering researcher, filed his firstNIWpetition in July 2012. In March 2013, USCIS issued a Request for Evidence (RFE) on the client’s case, seeking only copies of the articles that had cited his work. USCIS noted that he must establish his influence on his field as a whole. While our client had published his work to some extent, only four articles had cited his published work, as the majority of his work was funded by industry, proprietary, and hence restricted from publication. In response to the RFE, Attorney McCusker highlighted this aspect of the client’srecord, as well as other evidence that demonstrated that, despite his small number of citations, the client had nevertheless influenced his field at a broad level. In November 2013, USCIS denied our client’s petition, relying heavilyon his citation recordto conclude that he had not achieved the requisite level of influence in his field to warrant NIW approval.
Despite the denial, Attorney McCusker advised the client that, based on the law, the firm still believed his case was approvable under the NIW category and that USCIS had delivered an incorrect result. In April 2014, client elected to re-file his NIW, even though his citation record had not improved. In September 2014, USCIS issued an RFE on the client’s case that was nearly identical to the RFE it issued on his original filing in March 2013. In response to the RFE, Attorney McCusker once more emphasized the nature of the client’s work and the evidence besides citations that demonstrated his impressive level of influence on his field. Nevertheless, in April 2015, USCIS denied our client’s case,again relying heavily on his citation record to justify its conclusion that he had not achieved “widespread influence on the field as a whole”.
Based on USCIS’s nearly identical RFEs and denials, combined with the client’s belief that his record would not change in the near future in terms of citations, Attorney McCusker advised the client to file an appeal of USCIS’s denial with AAO. The client agreed with Attorney McCusker’s assessment. In his appeal, Attorney McCusker made several arguments on the client’s behalf. Among them, he argued that citations are but one form of evidence of influence, and that USCIS erred in its denial by relying so heavily on citations while ignoring other relevant evidence of influence. Attorney McCusker also argued that USCIS’s application of a standard of “widespread influence on the field as a whole” was overly strict, as the law requires a lesser standard of “some degree of influence on the field as a whole”.
In March 2016, AAO agreed with Attorney McCusker’s arguments and sustained the appeal in our client’s favor. A copy of the appeal can be read here.
Overall, this important result re-emphasizes that USCIS must employ a flexible standard in determining whether a beneficiary who works in a field of national interest has influenced their field to an extent that warrants issuance of a National Interest Waiver.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past nineteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
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