Can I appeal a denial of an EB-2 National Interest Waiver petition to federal court?

Applicants whose EB-2 NIW petitions are denied, who may disagree with the reasonings relied on by the USCIS office, may wonder what options there are to appeal this decision. The Administrative Appeals Office (AAO) provides one avenue to appeal unfavorable NIW outcomes. The question is, can you go to the courts to challenge the decision in front of a judge? In other words, can a denial of an EB-2 NIW petition be reviewed by a federal court?

The answer is no, federal courts do not have jurisdiction to review USCIS’s denial of a National Interest Waiver. This was confirmed in a case called Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019).

The logic for this is that the language of the statute specifies that issuing national interest waivers is “discretionary,” providing that the government may waive the labor certification requirement when it deems it to be in the national interest. The court found that the national interest waiver test calls for a series of “open-ended judgments” about substantial merit, national importance, and benefit to the United States – and that these considerations invoking broader economic and national security considerations are properly left to the Executive Branch to decide.

The upshot of this is that the only option for appealing an NIW denial is through the administrative procedures that the immigration agencies provide. One may file a motion to reconsider, a motion to reopen, or appeal to the Administrative Appeals Office (AAO).

By contrast, a denial of an EB-1A extraordinary ability petition may be appealed to federal court. This is because the statute provides objective criteria that the government’s decision must be based on, as opposed to leaving it to an open-ended, subjective evaluation.

Practically, this means petitioners who face a denial have a choice of appealing their case through administrative bodies such as the AAO, or to bypass administrative remedies altogether and to go straight to the federal courts for the appeal. See e.g., Amin v. Mayorkas, 24 F.4th 383 (5^th Cir. 2022). This means the petitioner could ask independent judges to evaluate whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Attorneys at Scott Legal have profound and multifaceted experience providing guidance to applicants navigating EB-2 NIW or extraordinary ability petitions and can help clients see all options available and set the right strategy for their case.