Appeals for EB2 NIW: should you consider it?

If you have faced a petition denial, this guide will walk you through the appeal process, discuss timelines, costs, and success rates, providing clarity on whether an appeal is the right path for you. Appeals for EB2 NIW and for other green card categories are possible, but as usual, one will need to evaluate several factors before deciding! Of course, the best case scenario is to avoid this situation altogether: craft a solid I-140 petition using resources like my EB-2 NIW online course.

Understanding the Appeal Process 

Appeals vs RFEs: What’s the Difference? 

An appeal and a Request for Evidence (RFE) are two different things. An RFE is part of the I-140 process itself, included in the government I-140 fee, and it provides an opportunity to submit additional information or clarification during your petition’s regular processing On the other hand, an appeal is a request for a different USCIS authority to review your case following an unfavorable initial decision. It is also covered under a different fee, as we will discuss later in this post.

A Closer Look at the Administrative Appeals Office (AAO)

The AAO is the unit responsible for handling appeals for petitions submitted to USCIS, including I-140 appeals from EB-2 NIW (National Interest Waiver) and EB-1A green card categories. While it operates within the USCIS, it is indeed a separate and dedicated team. Here you can find their website, which has a lot of useful information for a self petitioner to understand their work and processes. And that includes a repository of published AAO decisions that you can use to learn how USCIS analyzes cases, before you submit your own!

Where do appeals fit in the overall petitioning process?

I made the diagram below to depict in an easy-to-understand way where the appeals would fit the overall process. It is important to note that appeals are completely voluntary, stand-alone and separately priced processes Hence the different blocks in the diagram for the I-140 initial process (comprising the petition and a potential RFE) and the appeal process. 

If you decide to submit an appeal, you will send it to the same USCIS office that handled your case and denied your petition, and not to the AAO. The USCIS office will perform an “initial field review” to determine if they must revert their decision based on your request and the evidence you attach. 

If they do not agree with your assessment, they will then submit the case to the AAO for an independent and de novo review. The Administrative Appeals Office can then issue five different decisions, including an approval or a denial. We will see the five potential outcomes in the next section.

USCIS appeals I-140 EB2 NIW
Diagram depicting overall process for I-140 and potential appeal

Expected Outcomes of EB2 NIW appeals 

This appeal process can lead to several potential outcomes:

  1. Sustain. The appeal has established eligibility
  2. Dismissal. The appeal failed to establish eligibility for immigration benefit
  3. Summary dismissal. The appeal failed to state a reason
  4. Reject. Improperly filed appeals
  5. Remand. AAO sends case back to USCIS for further action. For example, appeal has “succeeded” but AAO identifies another issue not previously detected.

How to proceed if you want to appeal a case

Like for most USCIS processes, there is a form associated to the appeal process. This is form I-290B, Notice of Appeal or Motion. You can check out the official USCIS site to get access to the most updated version of the form, and very useful information such as where to send the request and the cost of it.

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Cost of EB2 NIW appeals

The current filing fee for an appeal (Form i-290B) is currently $675. It is expected to go up to $800 once USCIS approves the updated fee increase announced earlier this year, although it is still uncertain when this will happen.

This fee, as for many other government fees, is non refundable. That means you will not get your money back no matter what decision they take on your case. 

As of writing this article, the payment methods accepted for this form where money orders, and personal checks. You get the most up to date information on this on the USCIS site.

EB2 NIW appeal timeline: how long is it going to take to wait for the appeal decision?

These are the main steps and their timelines:

  • You have a maximum of 30 days to appeal (unless otherwise noted)
  • Initial USCIS field review: Maximum of 45 days
  • AAO appellate review: “Strives” to complete cases under 180 day
In their official website, the AAO publishes statistics on processing times for appeals. At the time of writing this article, the completion rate for I-140 appeals under 180 days was very high: 87% for EB-1A and 99% for EB-2 NIW green card categories.
completion timeline USCIS appeals
Processing times for Appeals related to I-140 applications

Success Rates and Denial Rates for EB2 NIW appeals

The official USCIS data suggests that success rates for I-140 appeals are generally very low. Denial rates vary from 75% to over 90%, which implies that most appeals fail in the hands of the Administrative Appeals Office. The graph shown below provides percentage of denials for EB2 NIW and EB1A I-140 appeals for Fiscal Years 2018, 2019, 2020, 2021 and 2022.

denial rates appeals

Conclusions: Should you appeal or just move on an file a fresh I-140?

The decision to appeal or not involves careful consideration of costs, success rates, and other factors. I generally discourage appeals and instead recommend filing a fresh I-140 petition, but remember that each case is different and must be evaluated on its own. Here are some points to consider:


Advantages of filing a fresh petition instead of an appeal

  • Similar cost compared to an appeal. Currently, the cost of a I-140 petition is $700, very close to what the appeal would cost you.
  • Two chances of approval instead of just one. Filing a fresh I-140 provides the petitioner two chances of getting feedback from USCIS: the initial decision and a potential RFE. However, during an appeal the petitioner will only get one more review.
  • Strengthen profile: A new petition allows you to address some weaknesses identified during the original process. You can also include facts that happened after the initial filing. In an appeal, you cannot provide evidence for facts post priority date.
  • Different Reviewer. A new petition often means that a different officer will review your case. This will allow you to rule out the human variability effect, one of those factors we cannot control. This is especially interesting if you feel you were treated unfairly the first time.

Main Disadvantage of filing a fresh petition instead of an appeal

  • Loss of Priority Date. If you choose to move on and file a new I-140 instead of appealing the existing one, you will give up your priority date. This means that you will not be able to adjust status as early as you would have with your first petition.

Remember: the decision to appeal or file a fresh petition is highly personal. I recommend consulting with a specialized immigration lawyer for insights specific to your own situation.

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