How to Prepare a Successful RFE
1. EB1 Immigrant Visa Petition for Aliens with Extraordinary Ability.
For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even a job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field."
Generally, the major advantages of EB1 Extraordinary Ability application include:
1) No labor certification is required for Form I-140 filing under EB1 Aliens with Extraordinary Ability;
2) The immigrant visas are current for EB1, so it is much faster to obtain a U.S. Green Card in this category than other categories under EB2 and EB3;
3) No U.S. employer sponsorship is required, thus an alien immigrant can self-petition the EB-1A with the USCIS.
4) A job offer from the U.S. employer is NOT required for EB1 Aliens with Extraordinary Ability.
The EB1 Extraordinary Ability classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim, and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percent who has risen to the top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and must substantially benefit the United States.
Evidence must be submitted to support a Form I-140 petition for Aliens with Extraordinary Ability. An alien applicant needs to prove that he or she has “extraordinary ability” in a field, and needs to show a major internationally recognized award, or documentation from at least three of ten criteria. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, The EB1 Extraordinary Ability applicant must have garnered "sustained national or international acclaim in the field of endeavor".
The alien applicants should be aware that approvals in the EB1 Extraordinary Ability (EA-1A) petitions are difficult to obtain. The legal standard requires showing that the alien applicant has reached the very top of his or her field. The legal standard in the EB1 Extraordinary Ability category is high. While this category was intended to apply to a small group of extraordinary individuals, it was not meant to be unattainable.
There are alien applicants who are able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that this extraordinary ability has been demonstrated by sustained national or international acclaim, and that the achievements have been recognized in the field with extensive documentation.
In some EB1 Extraordinary Ability petition cases, additional challenges are applied in this category by USCIS adjudicators, which are going beyond the high standard that is appropriate for the EA-1A category, and creating novel requirements.
USCIS adjudicators have wide discretion in adjudicating the EA-1A petition cases, and the complexity of the evidence presented. USCIS adjudicators sometimes apply heightened legal standards for EB1 Extraordinary Ability petitions to support a negative decision, or a Request For Evidence (RFE)
In such cases, it can be difficult to challenge the ineligibility finding made by the adjudicators, or provide evidence to reply the Request For Evidence. Therefore, it is necessary to carefully analyze the actual legal criteria, and the application of the criteria by the adjudicator to the often highly complex individual facts.
2. The Request For Evidence for an EB1-Extraordinary Ability Petition
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
After reviewing an EB1-Extraordinary Ability (EB1-EA or EB1A) petition, if USCIS needs additional evidence, they will send out Request For Evidence (RFE) with some explanation of the deficiencies for the evidence already submitted. In the RFE notice, USCIS will normally give the petitioner guidance in overcoming the deficiencies to establish the alien's extraordinary ability.
USCIS will normally not deny a petition if a particular type of evidence is not there. For example, people may think that if an alien is extraordinary, there should be published articles about the alien and his or her work. However, USCIS adjudicator cannot deny a EB1-EA petition because no published articles were submitted, if evidence meeting three qualifying criteria has been submitted that demonstrates the alien is in fact extraordinary.
If an USCIS adjudicator needs to request additional evidence, the adjudicator may provide explanation of the deficiencies in the submitted evidence, or may request for evidence that the petitioner could provide to corroborate the statements made in the original petition documents.
Many people who qualify for O-1 non-immigrant visas as alien of extraordinary ability do not automatically qualify for the EB1-EA immigrant petition, even though the standards are similar. For a successful response to a Request for Evidence in EB1-EA petition, the petitioner should prepare a RFE response according to the EB1-EA statutory and regulatory guidelines.
Certain evidence submitted in RFE response may overlap with two or more of the ten criteria set forth for EB1-Extraordinary Ability petition. The USCIS adjudicator will evaluate the quality of the evidence submitted on a case-by-case basis to determine whether the evidence submitted for RFE response satisfies the criteria required to establish eligibility for EB1-EA classification.
In the RFE response, petitioners may also submit comparable evidence to establish an alien beneficiary's eligibility in cases where the standards set forth by USCIS do not apply. In cases where such comparable evidence is submitted, it is reasonable to require the petitioner to explain why the standards set forth by USCIS do not apply.
3. USCIS' Policy of "Two-Part Evaluation" for EB1-Extraordinary Ability Petition and RFE Notice
The USCIS' Two-Part Evaluation approach adjudication method applies to EB1 Extraordinary Ability petition. The evidence listed in the EB-1A regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the alien beneficiary is nationally and internationally recognized as extraordinary, and have received "sustained national or international acclaim in the field of endeavor".
On August 18, 2010, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum to provides guidance regarding the analysis that Immigration Service Officers (ISOs) must use in adjudicating Form I-140, Immigrant Petition for Alien Worker. The purpose of the Policy Memorandum is to ensure that U.S. Citizenship and Immigration Services (USCIS) processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard. USCIS Immigration Service Officers ( ISOs) will follow the amended procedures in the adjudication of all Form I-140 petitions filed for EB1-Aliens of Extraordinary Ability.
The Two-Part analysis is used to determine whether the beneficiary is an individual of extraordinary ability:
1) First, USCIS determines whether the petitioner has submitted evidence to show that the beneficiary has received a one-time achievement (a major international recognized award); or the beneficiary qualifies under at least three of the ten criteria required for this classification.
2) If the petitioner establishes that the beneficiary has received a one time achievement (a major internationally recognized award), or meets at least three of the ten criteria, we then determine whether the petitioner has submitted evidence demonstrating that the beneficiary
- has sustained national or international acclaim, and
- has achievement that have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.
In determine whether the beneficiary has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. A beneficiary may have achieved extraordinary ability in the past, but then failed to maintain a comparable level of acclaim thereafter.
This initial evidence must include either evidence of a one-time achievement (i.e., a major international recognized award, such as the Nobel Prize), or at least three of the ten types of evidence. USCIS adjudicators must use a two-part analysis to determine eligibility First, the USCIS adjudicators must determine if the petitioner has, by a preponderance of the evidence, met at least three of the criteria, and then the adjudicators should consider all of the evidence in totality in making the final merits determination. To evaluate whether the evidence provided meets at least three criteria, USCIS adjudicators must determine whether the petition is supported by evidence of a one-time achievement (that is, a major, internationally recognized award). If it is not, then they must make a determination that is limited to whether the evidence submitted in the petition meets at least three criteria as discussed above. If such evidence is not exist in the initial filing, an RFE notice will be issued by USCIS Service Center to the petitioner.
Meeting the minimum requirement of providing evidence relating to at least three criteria does not, in itself, establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability. In making this determination, the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination.
In Part Two of the analysis in each case, USCIS adjudicators will consider all of the evidence to make a final merit determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has:
1) A level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. and
2) Sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Again, if such evidence is not exist in the initial filing to prove that the alien beneficiary is "one of that small percentage who have risen to the very top of the field of endeavor" and "sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise," an RFE notice will be issued by USCIS Service Center to the petitioner.
Simply presenting evidence which relates to three of the listed ten EB-1A criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1A classification, the additional evidence may be requested (Request For Evidence, or RFE)
4. Understand the Request For Evidence Notice - USCIS' Evaluation Criteria for Submitted Evidence in Support of an Extraordinary Ability Application
To process the Form I-140 petition and determine the eligibility for EB1 Extraordinary Ability petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the EB-1A beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.
An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1A cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
The submitted evidence should demonstrate that the alien applicant has sustained national or international acclaim, and the alien applicant’s achievements have been recognized in the field of expertise. The evidence should include documents of a one-time achievement (a major international recognized award), or at least three of the ten types of evidence list above. The submitted documents should establish that the alien applicant can meet the requirements as an alien of extraordinary ability.
For a Form I-140 application as an alien of extraordinary ability, USCIS adjudicators will look at the quality not the quantity of the evidence. The USCIS adjudicators will evaluate the submitted evidence to determine if the alien applicant has demonstrated that he or she has received sustained national or international acclaim in the field of endeavor. The evidence submitted to USCIS in supporting the EB-1A application does not need to use the words "extraordinary ability" specifically. Rather, the supporting documents should be apparent that the alien applicant's contributions to a field are qualifying the extraordinary ability requirements.
USCIS will evaluate the quality of submitted evidence on a case-by-case basis, to determine whether the evidence submitted satisfies the qualification requirements to establish the eligibility for EB-1A immigration visa. If the ten criteria for EB-1A do not apply, the alien applicants can also submit comparable evidence to establish the EB-1A eligibility. When the comparable evidence is submitted, USCIS may require the petitioner to explain why the ten criteria for EB-1A do not apply. In some cases, the submission of voluminous documents may not contain sufficient evidence to establish the applicant’s eligibility for EB-1A qualification. For all cases, the evidence submitted for an EB1 Extraordinary Ability application must establish that the alien beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor."
An alien applicant may be stronger in one particular area than in others, but the overall impression should be that the alien applicant is of extraordinary ability. The USCIS adjudicators should not predetermine the evidence they think the alien applicant should submit, and deny the EB-1A application if that particular type of evidence is not there. In a regular case, if an alien applicant is extraordinary, there should be published articles about the alien applicant's work. But an USCIS adjudicator will not deny the EB-1A application, because no published articles were submitted, if evidence of meeting 3 EB-1A criteria has been submitted that demonstrates the alien applicant is in fact extraordinary.
An application for an EB1 extraordinary ability must submit evidence that the alien applicant has "sustained" national or international acclaim, and that the alien applicant's achievements have been recognized in the field. An alien applicant may have achieved extraordinary ability before, but failed to maintain the level of acclaim thereafter. For USCIS to determine whether the beneficiary has the “sustained" national or international acclaim, such sustained acclaim must be continuing without termination or interruption. If an alien applicant was recognized for achievement several years ago, USCIS adjudicators will decide whether the alien applicant has maintained an acclaim level.
To use the comparable evidence, the petitioner should explain why the alien applicant cannot satisfy at least 3 of the 10 EB-1A criteria, and why the submitted evidence is comparable to that required in the EB1 extraordinary ability regulations. In some situations, one type of comparable evidence may satisfy more than one EB-1A criteria. But there is no comparable evidence for the one-time achievement of a major, international recognized award. When USCIS evaluates the submitted comparable evidence for EB1 extraordinary ability application, they will consider if the EB-1A criteria are applicable to the alien’s occupation or situation. If not, USCIS will determine whether the provided evidence is indeed comparable to the 10 criteria listed in the EB-1A regulations.
An EB-1A application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
5. Preparing a Successful RFE Response for EB1-Extraordinary Ability Petition
The petitioner should ensure that the alien beneficiary meets at least three of the required ten EB1-EA criteria. Although meeting three of the ten criteria would not guarantee that the alien will qualify as an alien of extraordinary ability in the arts, sciences, education, business or athletics. But if the alien can not satisfy at least three of the ten criteria, it may be wise to consider another immigrant category, such as EB1-Outstanding Researcher or Professor, or EB2-National Interest Waiver.
The alien of extraordinary ability is the one who belongs to that "small percentage", and who has "risen to the very top of the field of endeavor". Therefore, the petitioner should clearly document evidence in the RFE response that the alien beneficiary qualifies for each EB1-EA criterion. For example:
1) If the alien has published in national or international journals, the petitioner should provide copies of the published papers and circulation information proving that the journal is national or internationally published;
2) Provide citation search report for the published articles;
3) Provide additional independent reference letters from experts in the field;
4) If the alien has received an award, show proof of the receipt of the award, and then show the criteria for the award and why it is important in the field;
5) If the alien is highly paid, show that he or she is paid more than the weighted average, with copies of salary surveys for that particular position.
To reply the RFE requests, the petitioner should make sure to include additional reference letters from experts in the field who have not collaborated directly with the alien beneficiary. However, it undermines the reputation when the peer reference did not previously know the alien beneficiary, but is writing the letter simply after reviewing a resume and publications. Therefore, a combination of additional reference letters from experts and collaborators who describe the beneficiary's reputation in the field, along with a few other letters from independent references who know the beneficiary's work via their conference presentations or publications, is the best recipe for a RFE success.
According to USCIS, the reference letter should come from independent and well-recognized expert, based upon his/her review of the documents that are submitted with the EB1 Extraordinary Ability application. By "independent", the USCIS means an expert with whom the alien application has not worked before - not an employer, colleague, advisor, or client. By "well-recognized", the USCIS means a well-credentialed expert with lengthy experience in the field of endeavor. The experience should include an advanced degree, more than ten years of experience in the field, a lengthy publication and presentation record. Not every EB-1A application case needs the reference letter from "independent" and "well-recognized expert", especially when the alien applicant has Ph.D. degree and a lengthy publication record and several wards, which could distinguish the alien applicant from other individuals in the field.
6. Often Raised Question NO.1 in Request For Evidence for EB-1A Petition - Alien Applicant's "Original" Scientific Contributions to the Field
To satisfy the EB1 extraordinary ability criterion of "original" scientific contributions, the petitioner should provide evidence of the alien's "original contributions of major significance" to the field. The arguments alone are not sufficient. Although published work and funded research could be "original contributions” to a field. USCIS will check if the published work and funded research is indeed a major, significant contribution to the field. USCIS will determine whether the alien has made original contributions in the field, and whether the alien’s original contributions are of major significance to the field.
USCIS officers will evaluate whether the alien applicant's work constitutes major, significant contributions to the field. Although funded research and published work may be “original,” this fact alone is not sufficient to establish that the alien applicant's work has "major significance." For example, peer-reviewed presentations or peer-reviewed articles in scholarly journals may have significance of the alien’s contributions to a field, if the presentations or articles have provoked widespread commentary or received a goodly number citations.
Evidence submitted in this category must address the international reputation standard. Simply publishing or presenting an alien’s work or receiving grant funding is common in research, and does not indicate that the academic community has taken notice of his or her work. Patents or patent applications carry little weight unless they demonstrate an international reputation in the field, and petitioner should document the widespread use or application of the patent.
To meet this criterion, the submitted evidence should show that the beneficiary’s contributions are considered to be of major significance in the field of endeavor. To assist in determining whether the beneficiary’s contributions are original and of major significance in the field, the petitioner may submit:
- Objective documentary evidence of the significance of the beneficiary’s contribution to the field.
- Documentary evidence that people throughout the field currently consider the beneficiary’s work important.
- Testimony and/or support letters from experts which discuss the beneficiary’s contribution of major significance.
- Evidence that the beneficiary’s major significant contribution has provoked widespread public commentary in the field, or has been widely cited.
- Evidence of the beneficiary’s work being implemented by others. Possible evidence may include but is not limited to:
7. Often Raised Question NO.2 in Request For Evidence for EB-1A Petition - The Citations to Determine the Significance of the Alien Applicant’s Original Contribution to the Field
We all know that many aliens publish scholar articles, but not all published articles are cited by others, or published on journals with high impact factors. The web tools of GoogleScholar, SciFinder, and Web of Science can be used to establish the number of citations, and the journals' impact factor.
In scientific fields, citations are required in most cases when a researcher uses another scientist's research findings of for his or her own research. These citations are normally not considered to be probative for the alien applicant's extraordinary ability in the field. When evaluating citations to an alien’s work, USCIS will evaluate the submitted citations to determine the significance of the alien applicant’s original contribution to the field.
The frequent citations by independent researchers may show the interest in alien’s work, and may serve as evidence that the alien applicant is indeed an authoritative in the field. In some situations, alien’s significant and original contributions in a field can bring the subsequent references and citations.
8. Often Raised Question NO.3 in Request For Evidence for EB-1A Petition - Authorship of Scholarly Books or Articles
To satisfy EB1-EA regulation, the petitioner may present evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media. The evidence should establish the significance or value of the published material, and how it has set the alien beneficiary apart as one of the small percent who has risen to the top of his or her field.
The publications must be in peer-reviewed academic journals, preferably those with international circulation. When submitting evidence under this category, the petitioner must demonstrate that the publication record rises above that of the average scholar. One method of doing so is showing that the alien beneficiary’s papers have been widely cited by independent researchers in the field.
USCIS adjudicators determine whether the alien has authored scholarly articles in the field. By definition, a scholarly article reports original research, experimentation, and discourse. The scholarly articles are written by researchers or experts in the field. USCIS adjudicators also determine whether the publication is a scholarly book, or a scholarly journal with international circulation. The submitted evidence for published material should establish that the circulation is international, and indicate the publication's intended audience. Scholarly articles could include an abstract, a description of methodology, footnotes, endnotes, and bibliography.
The most persuasive evidence in this regard is the documentation that shows that independent experts or organizations in the field consider the published material to be significant or that the alien beneficiary's findings or methodologies have been widely cited or adopted by the industry or professional community at large. For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary, or received acclaim from others working in the field of endeavor, might satisfy this criterion.
Likewise, the alien's internal work product that was created for his or her employer or its clients as part of the scope of the alien's employment is not generally considered to be significant for purposes of satisfying EB1-EA regulation, which requires publication of material in professional or trade publications or major media, unless shown otherwise through corroborative, independent documentary evidence.
In some cases, this criterion might be satisfied by a showing of national or international conference presentations, provided such evidence is indicative of the requisite sustained national or international acclaim.
9. Often Raised Question NO.4 in Request For Evidence for EB-1A Petition - Published Material about the Alien Applicant
To satisfy this criterion, the published material should be at the national or international level. Articles in local newspapers, university publications, or internal company reports do not qualify. Moreover, standard academic citations do not count as published material about the beneficiary.
USCIS adjudicators will determine whether the published material was about the alien’s work. The published material should be about the alien’s work in the field, not just about his/her employer or another organization that the alien beneficiary is associated with. The articles that only cite the alien beneficiary’s work as footnotes or endnotes are not generally considered as “about” the alien’s work.
USCIS adjudicators will determine if the publication is a professional publication. The submitted evidence for published material should include the circulation, the intended audience, and the title, date, and author of the material.
Published abstracts: published abstracts do not carry the same weight as full-length articles, and an unpublished manuscript is not published material.
Articles published in one country: Articles published in only one country with only domestic circulation, such as many native language medical journals, do not satisfy the international reputation standard.
10. Often Raised Question NO.5 in Request For Evidence for EB-1A Petition - Alien's Participation as the Judge of the Work of Others
USCIS adjudicators will determine whether the alien beneficiary has participated as the judge of the work of others in the academic field. The petitioner should show that the alien beneficiary has not only been invited to judge the work of others, but also that the alien beneficiary actually participated in the judging of the work of others in the field.
Reviewing grants or articles can also satisfy this criterion, if the review request is directed particularly to the alien beneficiary. Generic letters or requests passed down from an advisor or mentor can not be accounted.
Some of the examples may include: peer reviewing for a scholarly journal, with evidenced of a request from the journal to do the peer review, and any proof that the review was actually completed; or serving as a committee member of a Ph.D. dissertation, which makes the final judgment for a candidate’s doctoral degree, as evidenced by school or department records.
USCIS Service Center often issues the Request for Evidence in EB1 Extraordinary Ability petitions with respect to the criteria of "judging the work of others." USCIS examiners question the alien applicant's work in acting as a reviewer for scientific journals, if the journals at issue were not the highest ranked journals in the field. Under the law, serving as a referee for scholarly, peer reviewed journals meets the "judging the work of others" criteria, even if the journal is not the highest ranked journal.
Normally, USCIS examiners may ask for "documentary evidence for selection of judges in panels/referees in journals." The petitioners should get documents from the editors of the journals. If the alien petitioner was asked to review any articles for the journal, he or she can ask a letter as evidence from the editors or associate editors. Additionally, the editors typically send out review decision letters to reviewers that they influenced the decision or outcome of the review. They may say that the decision to publish or not publish was made based on reviewer's recommendation. Such letters would play an important role for the RFE response also.
Question: In my EB1 extraordinary ability petition (EB-1A petition), I claimed the criteria of "judging the work of others in the same or an allied field". Now, how to response the USCIS Request For Evidence (RFE) notice for the request of judging the work of others?
Answer: The USCIS may send an Request For Evidence (RFE) notice to the EB-1A petitioner if the evidence only shows an invitation to judge the work of others, because USCIS needs the evidence that the EB-1A beneficiary actually judged the work of others.
It is important that the EB-1A beneficiary provides evidence supporting the field of endeavor and demonstrating that the contributions to the field are of major importance. An Request For Evidence may be issued by USCIS if an EB-1A beneficiary has judged the work of others that appear to be in a field unrelated to the beneficiary’s field of expertise.
After the EB1 extraordinary ability petitioner receives the RFE notice for judging of the work of others , the petitioner should submit evidence, such as information about the editorial board that they serve on, or emails or letters that signify that the beneficiary has reviewed manuscripts for prestigious journals.
11. Often Raised Question NO.6 in Request For Evidence for EB-1A Petition - Alien's Membership in Associations in the Academic Field
Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. The alien applicant should submit evidence of selective membership criteria along with evidence of membership in the association.
USCIS adjudicators will determine if the alien's membership association requires outstanding achievements in the academic field. The petitioner should show that the association membership is based on the alien beneficiary’s outstanding achievements in the field.
To meet this criterion, the petitioner should provide evidence to confirms that the association requires outstanding achievements of its members. To assist the USCIS in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit the section of the association’s constitution or bylaws which discuss the criteria for membership for the beneficiary’s level of membership in the association.
And, the submitted evidence should show that the basis for granting memberships in the submitted association is the beneficiary’s outstanding achievements in the field of endeavor as judged by recognized national or international experts in the field. To assist in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit:
- Information to establish that the individual who review prospective member’s applications are recognized as national or international experts in their disciplines or fields.
- The section of the association’s constitution or bylaws which discuss the qualifications required of the reviewers on the review panel of the association.
In some cases, an association may have multiple levels of membership. The alien's level of membership should require outstanding achievements in the academic field. The considering factors for whether the alien’s membership is based on outstanding achievements in the field include:
solely based on a level of education;
solely based on years of experience in a particular field;
based on the payment of a fee;
by subscribing to an association’s publications.
12. Often Raised Question NO.7 in Request For Evidence for EB-1A Petition - Alien's Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field
This criterion is intended for the prestigious awards. It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage, and some degree of prestige must attach to the given award.
USCIS adjudicators will determine if the alien beneficiary was the recipient of prizes or awards. The alien beneficiary should be the receipt of the major prizes or awards, as opposed to his/her employer being the receipt of the prizes or awards.
To meet this criterion, the petitioner should establish that the prizes or awards are given for excellence in the beneficiary’s field of endeavor, or that the primary purpose of the prizes or awards was to recognize excellence in the beneficiary’s field. To demonstrate excellence in the field is the basis for the prizes or awards, the petitioner may submit:
Documentary evidence describing how the prizes or awards relates to excellence in the beneficiary’s field.
Documentary evidence of the criteria used to grant the prizes or awards, including evidence that a criterion for winning the prizes or awards was excellence in the field.
The considerations for major prizes or awards of outstanding achievement in the field include:
the criteria used to grant the major prizes or awards;
the number of prize recipients or awardees;
any limitations on competitors (for example, an award limited to competitors from one institution may not rise to the level of "major" award in the field).
13. Other Questions often Raised in Request For Evidence for EB-1A Petition
1) Sustained national or international acclaim: in adjudicating a petition seeking to have a person classified as an alien of extraordinary ability, USCIS looks at the quality, rather than the mere quantity of the evidence. In making a determination, meeting the minimum evidentiary requirement will not automatically establish eligibility. In all cases, the evidence must be evaluated to determine if it in fact establishes that the alien is extraordinary by demonstrating that he or she has garnered sustained national or international acclaim in the field of endeavor.
2) One of that small percentage who have risen to the very top of the field of endeavor: whether or not a petition is approvable will depend on the specific facts presented. The evidence provided in support of the RFE needs not specifically use the word "extraordinary." Rather the material should be such that it is readily apparent that the alien's contributions to the field are qualifying. The submission of voluminous documentation may not contain sufficient persuasive evidence to establish the alien beneficiary's eligibility. The evidence provided in support of the Request for Evidence must establish that the alien beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor."
3) The alien's overall impression should be extraordinary: an alien may be stronger in one particular evidentiary area than in others; however, the overall impression should be that he or she is extraordinary. Approval or denial of a petition should be based on the type and quality of evidence that is submitted. Also, the alien beneficiary must intend to continue in the area of his or her expertise.
4) Self-Petitioners and continuing work in the field of extraordinary ability: An form I-140 petition filed on behalf of an alien with extraordinary ability does not need to be supported by a job offer; therefore, the alien may self-petition for the classification. However, in the RFE response, the alien must demonstrate that he or she intends to continue work in the field of extraordinary ability, and the alien's work will substantially benefit the United States prospectively. There is no standard rule as to what will substantially benefit the United States. In all cases, however, the alien must show that he or she intends to continue work in the area of expertise.
5) Collaborative research projects: additional evidence should corroborate the alien's individual role in any collaborative research projects in order to ascertain what degree of credit can be reasonably attributed to the alien beneficiary relative to his or her colleagues. The alien beneficiary may need to get a letter from ex-advisers and collaborators to say that he or she has done major work of the projects.
6) Articles in foreign language: articles that were published in foreign language journals should be accompanied by an English translation sufficient to demonstrate that the alien beneficiary authored the piece. Obtaining full English translations of published material can be burdensome, thus USCIS will not request complete translations unless absolutely necessary to evaluate to quality of the material. In many cases, such an evaluation of the material can be sufficiently conducted without a complete translation. The evidence should also show the date that the article was published and the circulation and readership of the journal.
14. The Comparable Evidence Which Can Be Used in a RFE Response
For a RFE response, the EB1-EA regulatory provision provides petitioners the opportunity to submit comparable evidence to establish the alien beneficiary's eligibility, if EB1-EA standards described do not readily apply to the alien's occupation. When evaluating such "comparable" evidence, USCIS will consider whether the criteria are readily applicable to the alien's occupation and, if not, whether the evidence provided is really comparable to the objective criteria listed in the regulations.
General assertions that the ten objective criteria described in EB1-EA regulation do not readily apply to the alien's occupation are not probative and should be discounted. Similarly, claims that USCIS adjudicators will accept witness letters as comparable evidence are not persuasive. The petitioner should explain clearly why it has not submitted evidence that would satisfy at least three of the criteria set forth in EB1-EA regulation, as well as why the evidence it has submitted is comparable to that required.
The following are examples of where the comparable evidence might apply in a RFE Response for coaches, authors, and athletes:
Example One: An alien beneficiary, who is an Olympic coach whose athlete wins an Olympic medal while under the principal tutelage of the alien, might provide support to a petitioner's RFE argument that the success of this athlete is evidence comparable to that in EB1-EA regulation, since the EB1-EA criteria might not readily apply to certain types of athletic coaches, if coaches in their field do not typically receive nationally recognized coaching awards.
Example Two: A best selling author might be able to demonstrate evidence comparable to the specific evidence required for commercial success in EB1-EA regulation, even though he or she is not a performing artist.
Example Three: Election to a national all-star team might serve as comparable evidence for evidence of memberships in EB1-EA regulation.
There is no comparable evidence for the one-time achievement of a major, international recognized award. In certain cases, one type of evidence may be sufficient to satisfy more than one of the criteria set forth in EB1-EA regulation.
15. Get Additional Reference Letters for Your Response of EB-1B Request For Evidence
You should get Additional Reference Letters for your response of EB-1A Request For Evidence notice. The majority of these letters should be from independent experts outside the alien applicant's circle. The letters should evidence the foreign national’s international recognition as outstanding in their field and original scientific or scholarly research contributions. The letters should state that the foreign national is extraordinary and in what ways.
Be sure to include letters from experts in the field who have not collaborated directly with the alien beneficiary, or from "independent experts" in the field. However, it undermines the claim to an international reputation when the peer reference did not previously know the beneficiary, but is writing the letter simply after reviewing his or her resume and publications. Therefore, a combination of letters from collaborators and mentors who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for success.
According to USCIS, the reference letter should come from independent and well-recognized expert, based upon his/her review of the documents that are submitted with the EB1 Extraordinary Ability petition. By "independent", the USCIS means an expert with whom the alien application has not worked before - not an employer, colleague, advisor, or client. By "well-recognized", the USCIS means a well-credentialed expert with lengthy experience in the field of endeavor. The experience should include an advanced degree, more than ten years of experience in the field, a lengthy publication and presentation record.
Also, the reference letters and testimonies, if submitted, must provide a much detail as possible about the beneficiary’s contribution, and must explain, in detail, how the contribution was “original” (not merely replicating the work of others), and how they are of “major” significance. General statements regarding the importance of the endeavors are insufficient.
16. Establishing Eligibility for the High Level of Expertise for EB1 Extraordinary Ability Immigrant Petition
Meeting the minimum regularly criteria outlined above alone will not establish eligibility for the EB1 Extraordinary Ability immigrant classification. Any evidence submitted should also articulate how the evidence establishes that the beneficiary possesses the required high level of expertise for the EB1 Extraordinary Ability immigrant classification.
Establishing eligibility for the high level of expertise required for the EB1 Extraordinary Ability immigrant classification is based on the beneficiary possessing:
Sustained national or international acclaim: In determining whether the beneficiary has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. A beneficiary may have achieved extraordinary ability in the past, but then failed to maintain a comparable level of acclaim thereafter; and
Achievements that have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.
When ultimately making a final decision regarding EB-1A eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the analysis. If the petitioner establishes that the beneficiary has received a one-time achievement (a major internationally recognized award), or meets at least three of the ten criteria, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has sustained national or international acclaim, and that the beneficiary ‘s achievements have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who risen to the very top of the field of endeavor.
This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.
17. Get Help for Your RFE Response, and Eventually Obtain Your Green Card
If you get a Request For Evidence (RFE) notice for your EB1-EA petition from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your I-140 petition rejection.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for EB1-Extraordinary Ability Petition" In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB1-EA petition, and eventually get your Green Card.
To further help your RFE response, we also provide a Premium Petition Service Program for our customers. Please visit http://www.greencardapply.com/general/premium.htm for more information.
18. The "Notice of Intent to Deny" and File an EB-1A Petition Again Thereafter
An EB-1A application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB-1A petition is denied by USCIS, you can file an EB-1A petition again, or file in other categories. The immigration law does not restrict the time you can file an EB-1A petition again after the rejection of your previous EB-1A application. A previous rejected EB-1B petition does not bar you from submitting another EB-1A petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
19. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
* The requested evidence was not material;
* The required initial evidence was submitted with the petition;
* The request for appearance or additional evidence was complied with during the allotted period, or
* The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
20. An Example of USCIS' Request For Evidence Notice for an EB1 Extraordinary Ability Petition
The following is an example of RFE notice from USCIS for an EB1 Extraordinary Ability petition:
REQUEST FOR EVIDENCE
The documentation submitted is not sufficient to warrant favorable consideration of your petition/application.
See Attachment for Details.
Your response must be received in this office by <Date>
Your case is being held in this office pending your response. Within this period you may:
1. Submit all of the evidence requested;
2. Submit some or none of the evidence requested and ask for a decision based upon the record; or
3. Withdraw the application or petition. (It is noted that if you request that the application or petition be withdrawn, the filing fee cannot be refunded).
You must submit all of the evidence at one time. Submission of only part of the evidence requested will be considered a request for a decision based upon the record. No extension of the period allowed to submit evidence will be granted. If the evidence submitted does not establish that your case was approvable at the time it was filed, it can be denied.
If you do not respond to this request within the time allowed, your case will be considered abandoned and denied. Evidence received in this office after the due date may not be considered.
PLACE THIS LETTER ON TOP OF YOUR RESPONSE. SUBMISSION OF EVIDENCE WITHOUT THIS LETTER WILL DELAY PROCESSING OF YOUR CASE AND MAY RESULT IN A DENIAL. PLEASE USE THE ENCLOSED ENVELOPE TO MAIL ADDITIONAL EVIDENCE REQUEST BACK TO THIS OFFICE.
F. Gerard Heinauer Director NSC/NLL EX0159
You are requesting classification as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. However, it is not apparent that you meet the regulatory criteria for this visa classification.
1. The documentation submitted with the petition indicates that the alien petitioner is an accomplished researcher. The importance of the research in which he is currently engaged is readily apparent. However, it is not apparent that the alien petitioner has the level of acclaim required for this visa classification. Please submit any available additional evidence that would address the issue of alien petitioner's standing in the field in terms of sustained national or international acclaim, such as, if applicable, any published material about the alien's achievements and career.
2. Provide evidence to establish the significance of the published material submitted about the alien's work and how it has set the alien apart from others in the field, as one of the small percentage who have risen or the very top of their field. Submit evidence to establish how the alien's work is considered original, and how it has made a major contribution compared to all others in the field.
3. Please submit copies of relevant portions of all APPROVED U.S. and /or foreign government (public) and /or business (private) grants or other funding for projects where the alien petitioner is named as an investigator, co-investigator, key person, or other. The documentation should clearly show that the project has been approved, the amount of funding, the duration of funding, a brief description of the project, and that the alien petitioner is a member of the project team. Please highlight anywhere in the documentation where the alien petitioner’s name and position (role) are shown.
4. If the alien petitioner is named as an inventor or co-inventor in any patent application, then please also submit a copy of the relevant portions of documentation issued by the U.S. Patent and Trademark Office. The documentation should show the kind of patent (e.g., provisional or other), that the patent application has been accepted, the general (non-specific, if necessary) description of the invention, and the names of the inventors. Please highlight any where in the documentation where the alien petitioner’s name and position (role) are shown.
5. A copy of a book chapter co-authored by the alien petitioner was found at Exhibit 31. However, in his curriculum vitae, the alien petitioner attests to having co-authored three additional book chapters. Please specify the Exhibit numbers where copies of these chapters may be found. If copies have not been submitted, then please do so.
6. The record shows some citations made by others of the petitioner' work, but this criterion requires that the evidence of articles about the petitioner's work, not articles that reference them to support their own. If further evidence of this criterion is to be submitted, it must also include that the work is significant: an unevaluated listing in a subject matter index or footnote, or a reference to the work without evaluation is insufficient, or a mere reference to his work or inclusion of his publications in bibliographies or footnotes, would also be insufficient for this criterion.
It is reasonable to expect that substantial document from well-known U. S. experts, established institutions, and appropriate U.S. governmental agencies would be readily available if the applicant is realistically having extraordinary ability. To facilitate adjudication, it is most helpful if all related documentation is submitted together.
Please do not submit a VCR tape, DVD, or CD, since that kind of evidence is not routinely requested and viewing/listening equipment is not routinely available.
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