Q: If I get a Request
For Evidence (RFE) from USCIS for my I-140 application, does it mean that my
application may very likely be rejected?
A: If your get a RFE notice from USCIS,
it is still very hard to predict the final result of your I-140 petition, and it
depends on the nature of the USCIS request.
For each case, the situation is
quite different. In general, with a very careful and complete response to the RFE, a
lot of petitions are eventually got approved, but some petitions do get
rejected.
Q: I got a
Request for Evidence (RFE) for my I-140 application, does it mean my application
is incomplete?
A: If only the original filing was
incomplete, such as missing payment fee or missing an form, you will not get
Request for Evidence (RFE), the USCIS would let you know at the beginning.
The RFE means that further evidence
is required for your pending application, for the USCIS to decide approval or
rejection of your application. The RFE does not change the pending status of the
underlying application of I-140.
Q: I plan to prepare my
RFE documents. I am a self-petitioner in NIW. My RFE replying documents may be as many as 450 pages,
because of several new project reports. Is it a good idea to send big size RFE responding documents?
A: It may not be good idea to send big size
documents for RFE replying. The applicant needs to make the size reasonable, but
it also depends on how the materials are organized. The well organized documents are not difficult
for the USCIS officers to handle.
We all know that EB1 and NIW
petitions are not easy to prepare the documents comparing with other immigration
applications. Someone who won a Nobel Prize or was an internationally
recognized authority could probably get by with a relatively short submission,
most cases would take a more substantial submission. But the applicants also need to remember that quality is
much more important than quantity for EB1 and NIW documents.
Q: I got a RFE for my EB1-EA petition, it asked me to provide "Evidence
of the beneficiary's original scientific contributions
of major significance in the field". Can you give me more
explanation for this question?
A:
For EB1-EA petition, if the USCIS adjudicators are not clear about your contribution
in your field, you may get RFE question to provide "Evidence of the
beneficiary's original scientific, scholarly, artistic, athletic, or
business-related contributions of major significance in the field."
It is not sufficient for the petitioner in EB1-Extraordinary Ability category
simply to contribute to the field. USCIS adjudicators will consider whether your work
has led to major contribution in the field. They may also consider whether the your work
results has been used as a guideline or by others in the field.
Q: The RFE letter
from VSC for my EB1-OR application asked the question of "outstanding
achievement requirement" for my membership of IEEE. Do I have to be a senior member of
IEEE to prove my outstanding achievement?
A: USCIS has been challenging the type of
membership for long time. Some memberships require outstanding achievements, but
not all memberships.
For example, you do not have to be elected
as a fellow of your professional association to meet this criteria. An associate or senior member of
IEEE can still demonstrate the outstanding achievement in some degree.
Generally, the IEEE membership is acceptable for USCIS, but this is the area that may require more explanations in the
response to the RFE.
Q: I filed NIW
application and then got a RFE letter asking for independent letters of
recommendations:
"Please demonstrate how your achievements are more significant/noteworthy than others in the field and are above that normally attained by somebody at your current level. To establish this you should submit letters from independent witnesses who have not worked with you but are familiar with your impact on the
field",
I want to know what is USCIS looking for in this case?
A: Clearly as the RFE question, the RFE in your case was quite specific as to what
USCIS wanted: an independent letters of recommendations.
Independent letters of recommendations
are more important in addressing the issues raised under NYDOT for NIW, particularly if they are not well articulated in the petition statement. A well prepared
responding statement backed by few quality oriented independent letters and copies of relevant
evidences may win the RFE case.
However, for EB1-EA petition, even
with independent letters, you still need to meet the 3 or more evidentiary standards specifically requested in the regulations.
Q: I received
a RFE for my EB1-EA application, it asked me to provide the evidence of international
recognition. Would "judgment of the work of others" be evidence of international recognition?
How about sitting in a thesis committee? Does this qualify under this category?
A: The "judgment of the work of others" can
include many issues, such as supervision and training of junior staff. But the
judgment of the work of others may not be evidence of international recognition.
It is reasonable that a chemistry professor is expected to supervise students of chemistry as
a part of his professorial duties. Therefore, serving on a thesis committee or supervising junior staff is not sufficient in meeting this
criteria of the evidence of international recognition.
USCIS always gives emphasis on the comments of experts, since it is impossible to understand the applicant's qualifications by the examiner without such comments.
Only judgment of the work of others or published papers do not guarantee the international
recognition. However, the applicant may provide several combined evidences as
the indication of international recognition.
Q: In my EB1-OR
petition, I provided my published papers. Now, a RFE notice from CSC asked me for the
citation information in published materials or in major media. How
could the CSC ask this question?
A: The citations can be counted towards meeting the criteria relating to published materials in major media about the petitioner.
USCIS now emphasizes that citations could demonstrate academic honesty and the reactions of other experts to the petitioner articles. It is therefore counted as part of authorship of scholarly articles and
achievements.
Q: I filed a concurrent
I-140/I-485 application in National Interest Waiver several months ago. Now, I
get a RFE letter for my I-140 application, asking for more supporting materials
and evidences. Please let me now what will happen for my I-485 application if my
I-140 is rejected after the RFE?
A: The concurrent
I-140/I-485 filing is supposed to permit the applicant a number of benefits,
including availability of work permit card, advance parole for international
travel, and similar benefits to the accompanying family members.
Under the law, the I-485
petition remains intact unless it is denied as separate from the denial of I-140. To
prevent the abuse of concurrent I-140/I-485 filing, the USCIS instructed
the service centers to deny all the accompanying applications including I-485, I-765, and I-131 simultaneously when the service centers deny the
underlying I-140 application.
Q: Recently, I replied to the RFE questions for my EB1-EA petition. Now I called
the service center and found out that the petition is under "supervisory review".
What is the "supervisory review"? does it mean a denial?
A: It may or may not lead to a denial, it may go to a supervisor prior to a denial being
issued. It goes to a supervisor when the officer is not sure of what to do. The
case officer wants to a denial going to supervisors first. On the other hand, the supervisor may instruct the officer to approve the
case.
Q: My self-petitioned Outstanding
Researcher I-140 was approved and I filed I-485 three months ago. Now I changed my job with a new H1B
in exact same field. Are there any risks down the road for I-485 if my former
employer is willing to cooperate with any RFE?
A: The EB1-OR I-140 petition is employer
sponsored and it is not portable (this is different from EB1-EA and NIW). The
USCIS adjudicator may regard a change of employer as invalidating the original
EB1-OR approval.
According to USCIS rule and AC-21, an I-485 applicant may change jobs after
180 days of I-485 approval. But in your case, you do not meet the criteria.
It may be possible that the USCIS
will ask you
to file a new I-140 (It depends on the individual officer).
Also, you should not take the risk to ask your
former employer to ”cooperate” with any possible USCIS RFE for your current
real employment situation.
Q: I have applied for
NIW in a self-petition. After I applied it, I received a best paper award in
Internet Security field. Now I get a "Request for Evidence" asking for
evidence of "how your achievements are more
significant than others in the field and are above that normally attained by somebody at your current
level?" Since this was awarded after the submission of my I-140
application, will this evidence be accepted by USCIS?
A: It may not be considered directly
towards your petition, as you obtained it after submitting the petition. USCIS has consistently cited a precedent case in which the service held that
"beneficiaries seeking employment based immigrant classification must possess the necessary qualifications as of the filing date of the visa petition."
But your best paper award may show that you can sustain your acclaim of "your achievements are more
significant than others in the field". If your include it in your RFE responding,
you need to prove the significance of the award.
Q: I am replying the RFE for my NIW
petition now. If my case is denied later after the RFE. Is it worth to try to
appeal the case?
A: Appealing a case after its denial is difficult to get success. For the appeals
of EB1 and NIW, most petitioners were not able to overcome USCIS decisions.
The USCIS denial decisions are not simply
summaries of reasons. They are consistent with established principles in all the cases. They provide a useful guide as to what they are looking for under each criterion.
Q: My EB1-EA application was filed by a lawyer,
who charged $7900. My RFE asked the question of "sustained international acclaim and extraordinary
ability." As you may know, I do not have a Nobel prize like most of us, how
could I answer the RFE question?
A: Most applicants in EB1-EA
category do not have Nobel prize, or something even close to it. For most ordinary
petitioners in EB1-EA, proving extraordinary ability and sustained international
acclaim is not an easy task, but statistics indicate that a lot of petitioners are approved in this
category after the RFE.
In the RFE response statement, the
applicant needs to explain the significance of the submitted documentary evidences
and scholarly articles, and relate to the criteria to prove "sustained international acclaim and extraordinary ability."
Q: I filed the I-140/I-1485 concurrent applications, with work authorization cards (EAD) and advance paroles
together. I want to know what is the difference of RFE for “additional evidence”
and RFE for “initial evidence”?
A: USCIS has confirmed that the procedure for
I-140 application is that the Service Center will first conduct an initial review of the I-140 petition. If the
USCIS determines that a Request For Evidence (RFE) must be issued, then the RFE will cover any and all evidence.
If the RFE is for “additional evidence” which is required to assist an officer in making a decision rather than an RFE for “initial evidence” which is required to make a prima facie
case. If the RFE is for “initial evidence” which is requested by an officer to determine whether or not the petition/application meets the basic
requirements.
Q:
My self-petitioned I-140 got approved, and my I-485 is still pending, may I
leave my current job?
A: For
self-petitioned NIW or EB-EA application, the job change will not affect the
pending I-485. The applicants enjoys a much broader flexibility due to the
different nature of their petitions. The I-485 petition will not depend on which employer you work for during the process.
But it does
not mean that you can do any job you like after the I-485 submitted. You need
to prove and maintain the required qualifications for NIW or EB-EA
application. If you later get a
Request For Evidence (RFE) or an interview for the I-485 petition, and you no
longer maintain the qualifications set in the original I-140 petition, your
I-485 may be rejected.
Q:
I received an RFE from NSC. The RFE states the usual
requirement for EB1-OR and to asks to provide independent reference for the fact for
"international acclaim as a researcher".
It is a surprise for me
as I am working at a leading research lab in my field in U.S. for the past two
years, since I finished Ph.D. from a university in Germany. I had sent eight
reference letters with the I-140 petition from US, Germany and China.
A:
The problem with the applicant's reference letters is
that they are all from the three places (US, Germany and China.) and written by people
whom the applicant already knew, who can not act as unbiased referees for applicant's work. The applicant can try to get reference letter from
people whom you met once at a conference, or who reviewed your papers before.
Q: I am a researcher in organic chemistry,
self-petitioned I-140 EB1-EA case and received a RFE from USCIS. It said that
"it is not apparent that you have the level
of acclaim required for this visa classification." What is this mean?
A:
The applicant has Ph.D in organic chemistry, and
worked a post-doc in one of the top US university for a year and then spent two
years in Germany as a Alexander Humboldt Fellow. Now, he is working as a
post-doc in US in the medicinal chemistry department for synthesizing anti-HIV
compounds.
In the RFE, USCIS officer wants to see the evidence
from the categories mentioned in the I-140 application form. The applicant needs
to explain the impact
of his research both in organic chemistry and medicinal chemistry.
Q: I am a researcher in Earth Science,
self-petitioned I-140 EB1-EA case and received a RFE from CSC. The RFE asked the
question like "how the alien's work is considered original and how it has made a
major contribution compared to all others in the field." I have sent all my
published 12 papers in national and
international journals to CSC.
A: The applicant has Ph.D in Engineering Physics from US, and now working as researcher
in a large company. He has published 12 papers in national and
international journals, and got 2 national awards. To reply the RFE, the
applicant need to emphasize his original research work in the papers published national and
international journals. It should state
specifically how his work stands out, the direct role his contributions have
had on the field.
Q: I am a researcher in Mechanical Engineering filed I-140 under
EB1-EA category, and
received a letter of RFE from USCIS asking "to provide evidence that
you have sustained national or international acclaim and your achievements have
been recognized". I think that my petition meets all
the USCIS requirements, and do not know how to answer the RFE question correctly.
A:
The applicant has PhD in structural engineering
with nine papers published in journals and conference publication, and he has
reviewed other researchers' work for publication. Also, he provided nine
recommendation letters, and he believe his petition was complete in all
respects.
For the RFE questions, USCIS does not only check if
the applicant meets all the criteria but also checks if the applicant rises to
the top of his or her field. For a successful RFE response, it is very important
to show that you are in the top of your field. The USCIS officer wants to see the
evidence.
Q: I
received REF for my NIW petition from NSC. I am collecting more
recommendation letters from the experts in the field of cancer research. Since I don't have a lawyer, I am not sure if I can open the
letters and quote the useful part into my cover letter.
A: The USCIS no longer routinely requires
submission of original documents or "certified copies." Instead,
ordinary legible photocopies of such documents will be acceptable for filing
and approval of petitions and applications."
It is not required to
keep your reference letters in the sealed envelope. You can even send a copy of
the reference letters to USCIS, and kept the original letters.
Q: My EB1-EA case was rejected and my appeal
was dismissed recently. The following are the dates:
-
my attorney filed the NIW
petition in February 2002;
-
USCIS asked for more information
in September 2002;
-
my case was denied in March
2003;
-
my attorney appealed my case in
April/2003, thereafter my case was transferred to Administrative Appeals
Office (AAO) in
May/2003;
-
the appeal was dismissed on June
25, 2003, by Administrative Appeals Office.
The letter from USCIS
says I can give a motion to reopen the case by providing more information within 30
days. Should I give a motion to reopen the case or should I just forget the whole thing,
and try a new Outstanding Researcher application? I
have a H-1B status right now, and I am a research associate in a medical school.
A: Generally, do not seeking for a motion. The success rate of
an appeal is small, and the success rate of a motion is even less. Since you
have filed the EB1-EA petition, you should have some new research papers published. It is suggested
that he may rewrite his petition and file an EB1-OR or NIW application.
As
a research associate in a medical school, if your job is stable, you may also
consider Labor Certification at the same time.
Q: I had earlier received a RFE for NIW
from CSC. The comments were mostly of a general nature questioning the intrinsic merit of the field.
I submitted 3 more reference letters explaining the importance of my work. Now I
received a denial notice. A lawyer suggests a motion to reopen before appealing.
This lawyer also suggests getting strong statements from my references to
reiterate that I am truly outstanding researcher. Any comments about this strategy?
Another point made by USCIS is providing letter from federal agency about the national impact of my work.
I provided a letter from a previous reference from NIH, stating that no federal employee can write this representing the agency. It is beyond the policy of such
agencies, it is a right answer? I also have a EB1-OR application in pending of
RFE processing.
A: The applicant has a Ph.D in
Chemistry, and now working as a scientist in a pharmaceutical company. He had 11
publications and 7 reference letters from other scientists, professors, previous collaborators
around the world. He also has a EB1-OR application in pending.
The appeal is a long process, it is
better to visit USCIS website first to understand its denial decision and the
appeal process to see what they are looking for, and to see how you could rescue
your case on substantive grounds relating to the criteria. Also, hiring an
experienced attorney may be needed in addressing the technical and legal issues regarding an appeal.
It may be be easier to answer the RFE for
EB1-OR, since NIW has the NYDOT case and its related questions. It should not be
necessarily to affect his pending EB1-OR application, since they are in different
immigration categories. A person may qualify for EB1-OR, but not in an area of national interest.
Q
How could the "Complete Do-It-Yourself
Package for Request For Evidences (RFE)" help
my RFE?
A: If you get a Request For
Evidence (RFE) notice from an USCIS Service Center, it is necessary that you must work
hard to
provide requested evidence and persuade the USCIS officers 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 approved Complete Do-It-Yourself
Packages for Request For Evidence, for I-140 petition of
EB1-Extraordinary Ability, EB1-Outstanding Researcher or Outstanding
Professor, and National Interest Waiver.
In each RFE package, we present methods of analyzing
RFE questions, RFE replying strategies, means of strengthening your case,
detailed RFE cases analysis, sample cover letter, sample reference
letters, and more. With the RFE package, you get all the information you need and step-by-step
knowledge of how to prepare an
efficient, professional, and complete response to your RFE notice, and
eventually
get your Green Card.
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