The Situation

My client was an education entrepreneur. A foreign government had bought his co-authored book and placed a copy in every school and public library in the capital, under a seven-figure contract (in USD). He had founded and run a nonprofit in the field, held an appointed seat on a national council on public health education, won international awards, drawn extensive and favorable coverage from both mainstream and specialized media, and built an online learning platform already under contract to schools in the United States.

The strategy was the same one that fits most accomplished self-employed founders: an EB-2 National Interest Waiver. This client qualified on both the advanced degree and the exceptional ability subcategories. I led with exceptional ability, the stronger foundation for the waiver under Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), and kept the advanced degree in reserve, the easy way out in the unlikely event USCIS ever found the first argument unpersuasive.

I have worked on many EB-2 NIWs, including some genuine outliers: a self-employed portrait painter, a self-employed wrestling coach, a physicist with no job offer and a truckload of valuable data. This one was the strongest of them all. So much useful evidence already there. So much more that could be gathered. So much room to argue, so few constraints, and not one weak point to defend.

We were not in a hurry. The world was still climbing out of the pandemic, and a case like this both required and rewarded patience. It normally takes several months to build a good EB-2 NIW case. This one took a year. The sheer volume of material and the number of people involved accounted for the difference: at least a dozen experts, numerous testimonials, awards, service and membership confirmations, letters from newspaper editors and TV stations providing verification and context for the media coverage. The English translations alone turned into a separate localization project. Having anchored every argument in evidence, having worked the brief until nothing could be added to it or subtracted from it, I filed the petition.

I had built the petition to be approved the day it was read. The only thing left to chance was who would read it. Luck was the one uninsurable variable.

Evidence? What Evidence?

When an examiner has nothing to say to what is in front of him, he can always say there is nothing there.

That is where USCIS began. A double devil’s dozen in the examiner’s ID at the end of the RFE should have been the tipoff. The filing ran close to six hundred pages and arrived intact; the request for evidence that came back announced that most of it had never been submitted, several hundred pages of exhibits simply gone missing from the record. I made sure a complete duplicate of the supposedly missing material was added to the record with my RFE response, and a few choice words to go with it.

The Denial

The RFE set the pattern. The denial was an abuse of discretion. Evidence I had filed was treated as never filed. When it met the standard, the standard rose. A case that stood for one proposition was cited for its opposite.

When the denial touched the record at all, it touched it to make it insignificant, transform it into something it was not, or make it vanish. Whatever loomed large in the file came back small, whatever was singular came back ordinary, whatever proved a criterion had gone missing or proved the opposite.

On my client’s book, the examiner had this to say:

“not every book which contains reviews within its contents and which received funds to self-publish and disseminate throughout schools and libraries in one city is automatically deemed a major achievement or significant contribution in the field of which it was written. For instance, the petitioner did not submit evidence to demonstrate how his book is set apart from all of the other textbooks which are commissioned, issued or shared with students in [the capital’s] schools and libraries.”

The question was exceptional ability: how writing, publishing and having such a book placed in every school counts as an accomplishment above the ordinary. Instead USCIS asked whether the book differed from every other textbook in the city. (And it was not even a textbook to begin with.) My client wrote the book. Its reach was his reach, its influence his influence, its success his. Having done away with the book, the examiner similarly disposed of the people who had endorsed it, including a high-ranking public health official, who apparently was not qualified to opine on public health education. It was clear from the decision that none of the arguments or the evidence were ever the point; in fact, avoiding the point was the whole point.

The state contract earned the same treatment. A foreign government had paid his company to put the book in every school and library in the capital. So what? No big deal.

The examiner reasoned that the money had gone to the company rather than the man, that arranging the contract was merely his job as the chief executive and then, having recast the author of a commercially and critically successful book as a paper-pushing bureaucrat, asked him to “establish the significance of the amount” his organization had been paid. The examiner wanted me to prove that a seven-figure deal was large enough to mean something.

The press coverage was shredded. My client’s work had been profiled for years in a national newspaper a century old, read across the country’s education agencies and by the people who run them. The examiner tossed aside the newspapers on a single ground: the features carried no author’s name, all the while holding a letter from the paper’s editor-in-chief confirming each publication. My client’s appointed seat on a national council fared no better, and here the denial argued against its own evidence. The description the examiner quoted from the evidence called the council’s members “distinguished.” Reading “distinguished,” the examiner concluded “ordinary.” A decade of leadership in the field, with national and international awards won by my client personally, was reduced to punching in and out at the office. Expert letters placing him in the top ten to twenty percent of his field were read as proof that he was average at best.

Then the degree treatment, when I stopped doubting what was happening. The examiner set the educational credentials evaluation aside, went to the database the evaluator had relied on, and alleged a mismatch between the titles on my client’s diploma and the titles the database listed for that credential. The case the examiner cited for this sleight of hand, Matter of Caron International, 19 I&N Dec. 791 (Comm’r 1988), lets USCIS set aside an evaluation only where the evaluation conflicts with the record. This one, however, agreed with the record; it agreed with the very database the examiner was quoting. The line that resolved the alleged mismatch sat on the same page the examiner was citing from the source. I thought I had seen everything, but not this. To cite authority that cuts against you while selectively quoting from the source that proves the opposite of what you are trying to prove is the kind of rhetorical move that ends careers; the examiner has honed it to a fine art.

There was a final detail, in keeping with the rest. USCIS never mailed the denial. I obtained it only by going to the USCIS Ombudsman, who sent me a copy, with barely enough time to file a motion. The appeal clock had been running all along, on a decision USCIS never sent me, which is one way to dispose of a troublesome case. (That I had seen before and dealt with, once making non-receipt of the denial the motion’s foundational argument in another case.)

The Motion

The motion to reconsider took the denial apart and showed what it was. A long and detailed advisory opinion from one of the country’s leading authorities on education, written to the value of my client’s products and services for U.S. schools, elicited not a single sentence; the cited authority ran the other way; the cited source proved the opposite; the evidentiary standard wrong altogether, measuring exceptional ability as though it were extraordinary ability; the burden, a preponderance under Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), 51 percent, was treated as 100. The examiner had read a remarkable career and pronounced it a run-of-the-mill resume.

The denial was so fixed on its result that even a Nobel Prize would have been rejected without a second thought. If a book a government bought for every school in its capital was ordinary work, then ordinary people everywhere must be turning out bestsellers and collecting the praise of national figures, and we do not live in that world. By the end of the brief, I was done arguing and was cataloguing the adjudication pattern for the record; the list reads like doctor’s notes before the diagnosis:

“The service goes on record to claim the EDGE database proves what it doesn’t prove. The service goes on record to misquote and misuse case law. The service goes on record to claim all the petitioner’s work and achievement has been routine employment. The service goes on record to claim that publishing a book praised and recommended by government experts and bought and distributed by the government in a [seven-figure] contract is nothing special. The service goes on record to claim that being invited to serve on a specially appointed government panel on public health education initiatives affecting the entire country is no different than participating in routine business meetings. The service goes on record to claim that winning significant national and international awards is what average people do in the course of their employment. The service goes on record to claim that publications about the petitioner, his business and his products and services in a major national newspaper with a significant national and international circulation don’t mean much because… the articles do not contain the authors’ names. The service goes on record to claim that having a unique product already successfully used by U.S. schools and praised by national and international experts, including a distinguished U.S. educator, is insufficient to seek a national interest waiver.”

There is a word for being told, steadily and in writing, that what is plainly before you is not there. The diagnosis appeared in the brief ten times, because the adjudication pattern called for it: gaslighting.

The answer to the motion came three months later and engaged with nothing. It recited the standard for a motion to reconsider and found the standard unmet:

“the petitioner has not explained how USCIS misinterpreted policy, law, or precedent decisions in determining that the petitioner was not qualified for the NIW classification.”

The order dismissed the motion and left the original denial, in its own word, “undisturbed.” The adjudication was over before the writing began, and the writing showed it.

The Result

A second motion would only have produced a second template. So I stopped litigating the denial. I appealed the motion dismissal to the Administrative Appeals Office, and I refiled the petition. When premium processing opened to such petitions two months later, I upgraded the refiled petition. The approval came two days later. The appeal to the AAO, by then moot, was administratively dismissed.

A petition can be built to survive every objection and still fail the one test no preparation reaches: who opens the file. Some examiners do their work honestly and fairly. Some decide first and assemble the reasoning after. A few have learned that nothing happens to them when they abuse their authority and discretion and betray public trust. Which one you draw is random. They hide behind their ID numbers. Every so often, you recognize these ID numbers from another case. One examiner spent a whole year proving that six hundred pages of evidence did not exist and meant nothing. The next approved the same petition in two days. Nothing in the petition had changed. Only the reader did. Should the same double devil’s dozen ID ever appear on your RFE or denial notice, you will need something no effort, preparation, or even legal authority can supply. Good luck.