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NIW Approval Following the Appeal against TSC Officer XM0852

2025-01-17, BY wegreened

Case Summary:

Our client, a software engineer hailing from Canada, sought our assistance in submitting a National Interest Waiver (NIW) petition on his behalf. We filed his I-140 petition back in September 2022, incorporating the following information into his petition package:

  • He holds a master’s degree in information systems management and is recognized as an expert in artificial intelligence.
  • His proposed project involves creating and enhancing cutting-edge machine learning (ML) techniques aimed at autonomously updating ML models and developing privacy-enhancing methods to facilitate the integration of ML in diverse industries, including automotive and healthcare.
  • His proposed endeavor is of great importance because it directly supports the increasingly important applications of artificial intelligence (AI) and ML to the world’s most advanced problems and, therefore has substantial merit.
  • His work has resulted in 3 peer-reviewed journal articles and 6 conference papers (3 of them first-authored). His publications have been cited a total of 71 times. Moreover, he has completed at least 16 reviews to date.

Request for Evidence (RFE) and Denial

Unfortunately, despite submitting a strong petition, the initial response from USCIS was a Request for Evidence (RFE) issued on December 12, 2022.
 
Officer XM0852 challenged all three prongs of the NIW framework. Primarily, the RFE questioned the national importance of his work and the strength of his citation record. The USCIS officer seemed to have overlooked key aspects of the petition, including the applicant’s detailed research plans and expert endorsements, which demonstrated the broader impact of his work. The officer also failed to properly evaluate the full breadth of evidence provided.
 
In response to the RFE, our legal team submitted an extensive rebuttal. We emphasized the substantial national interest in the client’s work, its future potential, and the client’s impressive academic record through a detailed comparison of his citation record with similar cases. Additionally, we pointed out the officer’s failure to properly apply the “preponderance of the evidence” standard, as well as their oversight in not giving due weight to expert letters and misinterpreting the client’s role. The RFE response focused on correcting these mistakes and securing approval.
 
Despite his strong citation count and the recognition of his research, the officer issued a denial on July 31, 2023, stating that the evidence failed to establish the national importance and substantial merit of his proposed endeavor in the field. We found the officer’s decision deeply flawed. This conclusion was deemed unreasonable, as it ignored the full spectrum of supporting evidence and failed to consider the forward-looking nature of the client’s research, which was the core of the NIW petition.


Appeal and Final Conclusion

Determined to overturn the decision, our team filed an appeal in August 2023, arguing that the USCIS officer had misinterpreted the law and failed to review all the submitted evidence adequately. We highlighted that the officer had not given proper weight to the national importance of the client’s research, especially in light of the government’s recognition of artificial intelligence as a critical field. Moreover, we emphasized that the denial failed to account for the prospective nature of the client’s proposed endeavor, which was integral to the Dhanasar framework.
 
In a favorable turn of events, the Administrative Appeals Office (AAO) sustained the appeal on March 19, 2024. The AAO’s decision was a clear victory for the client, stating that the USCIS officer had incorrectly assessed the national interest waiver and failed to consider the client’s future research contributions. The AAO’s ruling confirmed that the client had met the criteria for the National Interest Waiver, ultimately overturning the initial denial.
 
In conclusion, this case illustrates how critical thorough preparation and careful review are in navigating the complexities of the U.S. immigration system. Despite the challenges posed by the initial denial, North America Immigration Law Group’s expertise and determination ensured a favorable outcome for the client. The successful appeal serves as a reminder of the importance of advocating for a fair and complete evaluation of each client’s unique qualifications and contributions. Through strategic argumentation, meticulous documentation, and tireless dedication, we secured the I-140 approval that the client rightfully deserved.

Our Firm’s Approach After a Denial:
 
With the USCIS NIW approval rate dropping to 62.78% in the first quarter of FY2025 (see here), denials are becoming more common—even for otherwise strong cases. That’s why it’s essential to understand how your attorney can support you strategically and proactively after a denial. At our firm, we don’t view a denial as the end of the case. We carefully analyze the officer’s reasoning and advise most clients to pursue both a refile and an appeal when appropriate.
 
Although appeal approvals are rare—of the nearly 1,400 AAO NIW appeals filed in FY2024, only 15 were sustained and 90 remanded (see here) —an appeal offers a key benefit: it preserves your original priority date. This can be critical if your appeal is sustained, as it may allow you to file your I-485 adjustment of status sooner, without waiting for a new priority date to become current.
 
Because we believe in the strength of our cases, for clients under our Approval or Refund® service, we pay the USCIS filing fee for either the appeal or the refile. We are committed to standing by your case and giving it every possible opportunity to succeed.

The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 61,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor), EB-2 NIW (National Interest Waiver) and O-1 approvals, our firm has acquired substantial information about USCIS decisions, which gives us significant advantage over firms that only handle a small number of cases.

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.