Federal Courts Not Likely to Review NIW Denials

The U.S. Court of Appeals for the District of Columbia Circuit dismissed four appeals on June 17, 2005 that had been filed in National Interest Waiver (NIW) cases.

Reason for Dismissal of all NIW Appeals

The dismissals were based on the Court’s finding that it did not have the authority to review these decisions. The Court determined that NIWs fall within the category of cases for which the U.S. Attorney General (AG), or his/her designee, is permitted to use full discretion to decide. The Court further decided that, because these cases permitted discretionary decision making, and there is a federal statute that prohibits the court from reviewing most immigration cases that are decided under such discretion granted to the AG, the Court was forbidden by statute to review the cases.

Decision Binding Only in the DC Circuit Jurisdiction

If an NIW is denied, there is an avenue to appeal though the Administrative Appeals Office (AAO). If the AAO determines that the denial should be upheld, the Court’s decision in this case means that, in the District of Columbia Circuit, further appeal cannot be pursued. Of course, if an NIW case is approved, the person is not likely to appeal the case and the government, in most cases, tends not to appeal an NIW approval unless there is a concern of national security or some other strategic or legal issue of national importance.

It may be possible to file an appeal in other Circuit Courts, as a Circuit Court decision is generally only binding on the geographic area under its jurisdiction. It is likely, however, that another Circuit Court may reach a similar conclusion with regard to its inability to review an NIW decision.

Conclusion

From a strategic point of view, even if one’s NIW case is denied at the AAO, that person should consider filing a new NIW petition. In many cases, there will have been new achievements between the time of the filing of the earlier NIW petition and the denial / decision. Accordingly, one may be better off re-filing a new NIW case, notwithstanding the earlier denial. It is best to consult an experienced immigration attorney prior to any NIW filing to discuss the pros and cons and likelihood of success in this selective and highly-subjective category. We at The Law Office of Sheela Murthy have a department devoted to filing NIW cases and for professionals of extraordinary ability who can file in their individual capacity, based on their outstanding accomplishments and contributions to their fields as well as to society.