EB-2 NIW Denial: Your Next Steps to Overcome the Setback

Receiving an EB-2 NIW denial can be a significant setback to your immigration plans. This setback can leave you feeling lost and uncertain about your future in the United States. However, it’s crucial to remember that a denial doesn’t mean the end of the road for your green card aspirations. There are several paths forward, and understanding your options is the first step to overcoming this obstacle.

In this article, we’ll explore the steps you can take after an EB-2 NIW visa denial. We’ll break down the reasons behind denials, discuss the appeal process, and examine the possibility of refiling your petition. 

We remind our readers that while this article provides valuable insights and generalized information about the EB-2 NIW Visa, it does not constitute legal advice. For personalized assistance with your immigration needs, please consult experienced immigration attorney. If you want to speak with our lawyer, our customer care representative will happily arrange a call.

Understanding the EB-2 NIW Visa Requirements

You must understand the application requirements to understand an EB-2 NIW visa denial. This will help provide background on where common mistakes happen and ways to overcome these setbacks. 

Eligibility criteria

To qualify for an EB-2 NIW, applicants must meet the requirements of the EB-2 category, which includes having either an advanced degree or demonstrating exceptional ability in their field. 

An advanced degree can be either a master’s degree or higher, or a bachelor’s degree plus at least five years of progressive work experience in the relevant field (this combination is considered equivalent to a master’s degree under USCIS standards).

Foreign degrees are often not automatically equivalent to U.S. advanced degrees and may require evaluation by a recognized credential evaluation service to determine their U.S. equivalency. Failure to submit this evaluation can lead to a denial, as the USCIS must be confident that the educational qualifications align with U.S. standards.

Exceptional ability, on the other hand, refers to expertise that significantly exceeds what is ordinarily encountered in the sciences, arts, or business. Applicants must provide evidence such as academic records, letters documenting relevant work experience, professional licenses or certifications, and proof of a salary commensurate with their exceptional skills.

National interest waiver

The National Interest Waiver (NIW) is a unique aspect of the EB-2 visa category that allows applicants to bypass the usual requirement of a job offer and labor certification. To obtain this waiver, applicants must prove that their work is in the national interest of the United States.

Proposed endeavor

The proposed endeavor is a crucial element of an EB-2 NIW petition. It outlines what the applicant intends to do in the United States and forms the foundation of their case. When defining the proposed endeavor, it’s best to be strategic and focused, as this can make it easier to argue for its national importance and substantial merit.

To demonstrate substantial merit, applicants can highlight how their work contributes to fields such as education, health, culture, technology, science, entrepreneurship, or business. The proposed endeavor doesn’t necessarily need to have immediate economic benefits; instead, it can be framed in terms of its broader impact on social good.

Understanding the EB-2 NIW Denial

Receiving an EB-2 NIW denial can be a devastating blow to your immigration plans. However, to move forward, it’s crucial to understand the reasons behind the denial and analyze the notice you received. This understanding will help you determine your next steps and improve your chances of success in future applications.

Not a Solid Work Endeavor

There are several common reasons why an EB-2 NIW visa petition might be denied. One common issue is failing to clearly define your proposed endeavor. The proposed endeavor is the heart of your NIW petition, and a vague or poorly articulated statement can severely weaken your case. USCIS expects a concrete, well-detailed plan that outlines your intentions and goals in the United States.

Lacks National Importance

Another common reason for denial is the failure to demonstrate that the proposed endeavor has substantial merit and national importance. Applicants must show how their work will have a significant positive impact on the United States. Being part of a trendy or up-and-coming industry is not sufficient; the focus is on the specific contributions an applicant can make to advance the nation’s interests.

Lack of Credentials 

Additionally, applicants may only be accepted if they prove they are well-positioned to advance their proposed endeavor. This involves demonstrating relevant qualifications, experience, and a track record of success in related efforts. One requirement of the EB-2 NIW visa is an advanced degree or exceptional talent. 

Applicants who use an advanced degree as part of their EB-2 NIW application need to have either a master’s degree or a bachelor’s degree plus five years of postgraduate experience in a related industry. Foreign degrees often do not equate to an advanced degree in the United States, which can cause grounds for denial. Another commonality in EB-2 NIW denials is if the applicant is missing five years of experience in a related industry after receiving their bachelor’s. 

Visa officers scrutinize an applicant’s credentials to ensure they have the capability to execute their proposed project successfully.

Lack of Evidence

One of the most common pitfalls in EB-2 NIW applications is providing insufficient evidence to support your claims. The U.S. government expects applicants to present a strong case backed by substantial documentation. This includes proof of your background, experience, and abilities that align with your proposed endeavor. It’s crucial to select your strongest evidence carefully, avoiding the temptation to overload your petition with unnecessary documents. Striking a balance between providing enough evidence and not overwhelming the adjudication officer is key.

Analyzing Your EB-2 NIW Denial Notice

When you receive an EB-2 NIW denial, carefully analyze the denial notice. This document provides valuable insights into why your petition was rejected and what aspects of your application need improvement.

The denial notice typically outlines specific areas where your application fell short. It may highlight issues such as insufficient evidence, lack of clarity in your proposed endeavor, or failure to demonstrate the national importance of your work. Pay close attention to these points, as they will guide your strategy for moving forward.

Consulting an immigration attorney to help analyze the EB2 NIW denial will help guide the next steps in the immigration process and how to overcome this setback. By carefully analyzing the denial notice and identifying the weak points in your application, your legal counsel and you can develop a strategy to address these issues in future petitions or appeals. 

Appealing the Decision

After receiving an EB-2 NIW denial, appealing the verdict is one possible course of action. However, reviewing the notice with legal counsel is crucial to understanding the best course of action. 

Pros and Cons of Appealing

One advantage of appealing is the opportunity to have your case reviewed by a different authority. The Administrative Appeals Office (AAO) conducts an independent and thorough examination of your petition. This fresh perspective might lead to a favorable outcome if you believe the initial decision was flawed or overlooked crucial aspects of your case. However, the cons of appealing are significant. The success rates for I-140 appeals are generally very low, with denial rates ranging from 75% to over 90%. This means that most appeals fail to convince the AAO. Additionally, the appeal process can be time-consuming and costly.  Another drawback is the limited scope of an appeal. Unlike filing a new petition, you cannot include new evidence for facts that occurred after the initial filing date. This restriction can be particularly disadvantageous if your qualifications or achievements have improved since the original submission.

In general, filing an EB-2 NIW appeal rarely happens in practice. Carefully consider whether appealing is the best strategy for your situation or if refiling a new petition will have a higher chance of success.

Refiling Your EB-2 NIW Petition

If you’ve received an EB-2 NIW denial, refiling your petition can be the best option to overcome the setback. This approach allows you to address the weaknesses in your initial application and present a stronger case to the USCIS.

• Strengthening Your Application

To improve your chances of success when refiling your EB-2 NIW petition, it’s important to focus on strengthening your application. Carefully review the EB2 NIW denial notice to identify areas in your application that need improvement. Here are some common strategies to improve your petition: 

• Enhance your proposed work plan

Clearly outline your future plans and their potential benefits to the United States. Explain how your work is of national importance and how it will contribute to the country’s interests. Include a clear indication of what you aim to do, well-thought-out and detailed descriptions of the steps you will take to achieve your goals, and a comprehensive explanation of how your undertaking will contribute to the national objectives of the U.S.

• Provide more comprehensive evidence

Gather additional documentation to support your claims. This may include peer-reviewed publications, letters of recommendation from experts in your field, and proof of your accomplishments. 

• Clarify your field of expertise

Ensure you clearly define your specialization and how it relates to your proposed endeavor. Detail how your industry and specialties are of national interest and will contribute to the United States. It is important to provide context to how your work is of national interest through significant media publications and other evidence. 

• Establish national importance,

Describe how your work has the potential to create national or global impact within your field. Highlight the ability of your project to create jobs for U.S. workers or generate significant positive economic outcomes. Additionally, explain how your work aligns with national priorities, initiatives, or issues of importance as recognized by government agencies or broader national interests.

• Demonstrate your unique qualifications

Highlight the exceptional abilities and skills that set you apart from others in your field. Your proof of contributions to the field should be thorough and tell a story of your accomplishments. 

Addressing Previous Weaknesses

When refiling your EB-2 NIW petition after a denial, it’s critical to directly address the weaknesses identified in your previous application to increase your chances of success. Consider the following:

• Consult Legal Expertise – Hiring an immigration lawyer focusing on EB-2 NIW visas will help you navigate the refiling process. An immigration lawyer who understands the EB-2 NIW process will help you understand the denial notice, how to improve your case and increase your chances of success. 
  
  
• Analyze the EB-2 NIW denial notice – Carefully review the reasons for denial and create a checklist of issues to address in your new petition. Your immigration lawyer can develop a strategy of the best ways to address the reasons for denial in your new EB-2 NIW application. 
  
  
• Provide additional evidence – If your previous application lacked sufficient documentation, gather more compelling evidence to support your case. It is essential to ensure that all evidence is thorough and meets the USCIS criteria. 
  
  
• Improve your recommendation letters – Obtain stronger letters of recommendation, preferably from independent experts who can attest to the importance of your work and its potential impact on the United States. This document lets you articulate your professional plans in the United States and explain how your work aligns with the national interest. Aim to include between 3 and 5 letters, with a mix of subjective and objective recommenders. Generally, the most valuable letters for your NIW application come from objective or independent recommenders. These are experts in your field who know you through your work rather than personally.  Their opinions carry more weight with USCIS as they’re seen as more impartial assessments of your abilities and impact. PassRight can help you strategize and draft these letters of recommendation. 
  
  

• Refine your personal statement – Craft a more persuasive cover letter articulating how you meet the EB-2 NIW requirements and why your work is in the national interest. Specifically, addressing how your work is critical to the United States, and sources can help strengthen your statement. This document lets you articulate your professional plans in the United States and explain how your work aligns with the national interest. The main focus should be on your future plans and how they benefit the United States.

Refiling your EB-2 NIW petition is not simply resubmitting the same information. It’s an opportunity to present a more compelling case addressing your previous denial’s concerns. Addressing weaknesses in the EB-2 denial and strengthening your application overall increase your chances of success!

Conclusion

Facing an EB-2 NIW denial can be a tough blow, but it’s not the end of the road. This article has explored various paths to move forward, including appealing the decision and strengthening and refiling your petition. Each of these routes has its own challenges and opportunities, giving you room to figure out the best way to keep your American dream alive.

In the end, the key is to stay focused and determined. Whether you choose to appeal or refile, remember that setbacks are just part of the journey. By carefully weighing your options and taking the time to strengthen your case, you can turn this setback into a stepping stone toward achieving your goals in the United States. Keep pushing forward, and don’t let this hurdle stop you from pursuing your aspirations.

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