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  • Help: I-140 denial (NIW) and need to appeal?

    I need help!!!! This is a very serious concern to me and my family (including my babies).

    I received a denial letter on my NIW (i-140) 2 weeks ago from NSC. I guess they don't like my qualification. I'm not sure if I need to appeal it. Please help me on this if anyone knows or has similar case with mine. Below is my story:

    Assistant Professor in public health (with Ph.D., MPH, MA)
    6 publications in HIV/AIDS and substance abuse (b or c journals in the field but all scientific articles in the US)
    Principal investigator for about $46000 grant (funding from state gov't agency) - this one was not acknowledged in both letter to NSC (interesting to know why they did not consider it)
    more than 20 citations on my articles
    higher salary (more than $70000/y)
    peer-reviewer of 3 scientific journals
    8 reference letters from people that I know of
    2 supportng letters from indepdent journal editors
    my 6 year H-1b expires in 10-29-06
    I-140/485 concurrent application (1-3-05)
    RFE received and response sent out to NSC in early September
    Denial letter arrived (12/29/05)
    I did myself for the inital letter (1-140 application) but hired later an attorney for RFE - it was my mistake hiring a lawyer who never filed or prepared NIW and even NIW RFE responding letter.


    Of the 3 factors in Matter of NY Dept Transportation, first 2 being met, but the last one is not met, according to their decision letter. It states, "the Service can't conclude that the petitioner presents a prospective benfit that will serve the national interest to a substantially greater degree than that of a qualified US workers with similar qualifications and/or work experience. The petitioner has not demonstrated that it would be contrary to the national interest to potentially deprive an employer of his services by making the offere position available to qualified US workers. No evidence has been presented to establish that the benefit conferred by the petitioner's field of endeavor would be defeated or that the national interest of the United States would be adversely affect if a labor certification were required."

    My working visa expires in coming October. I'm not positively sure if I need to appeal this decision. If I appeal, I have to do it alone. No money to hire lawyer....Anybody appealed with this similar case? What's the fee for I-290B? The letter says at the end of the letter a fee of $110 shhould be accompanied, but I=290B require a $385 fee... which one is right? Also, how long does it take to get their decision for I-290B?

    I would greatly appreciate if anyone can share or respond to this. Thanks very much.

    James

  • #2
    I am so sorry to hear that your case was denied. Your background sounds perfect for NIW. I believer your lawyer really did a bad work and you should had submitted more independent letter during RFE. At this stage, I believe you should try to apeal, meanwhile try EB1 EA.

    Comment


    • #3
      Sorry to hear James about yopur case!
      First and formost You look most suitable candidate for Eb1-OR.
      While you prepare for appeal. Try filling I-140 for urself in this category.
      If lucky NSC is giving response in 2 months now a days...you will survive before october 2006.
      R u from retro country? If not then you can file I_485 (I am sure you can transer while its pending MTR appeal) too.
      ifyour are EB1 will be advantage later as there is chance that it might become current at one stage........

      Coming back to appeal.
      I beleive you can appeal.
      You must read AAO decisions on BCIS website and then decide what went wrong. If you are ideal candidate to work on this project then you have a case. I beleive it is just chance that weak cases get approved without any hassel sometime but strong cases get stuck...i guess presentation and document assembly contributes a lot to successfull case.
      Last edited by eb1doc; 19th January 2006, 05:58 PM.

      Comment


      • #4
        NIW@TSC,

        I did not include 2 independent letter when applied first. 2 independent letters were sent when responding to RFE. As a matter of the fact, the NSC officer acknowledged and accepted the value of those supporting letters - it wasn't a question. The only concern they had was about the THIRD Prong that my qualification is not "substantially greater degree than that of a qualified US worker with smilar qualifications and/or work experience." I clearly in the RFE letter pointed out my grant funding experience as exceptional capability, but they didn't buy it or even acknowlged about my grant funding experience.

        Comment


        • #5
          eb1doc,

          First and formost You look most suitable candidate for Eb1-OR. While you prepare for appeal. Try filling I-140 for urself in this category.(I thought about it, but univ. legal council told me that I'm not qualified. Now, the univ. where I work is not willing do support my GC application. I'm very mad at it..because of my conflict with the Dean)


          R u from retro country? (what country refering to? what does that mean") If not then you can file I_485 (I am sure you can transer while its pending MTR appeal) too. (what is the MTR? what does that mean to my case? I thought that I have to appeal, rather than MTR. Am i right?)

          ifyour are EB1 will be advantage later as there is chance that it might become current at one stage........

          Coming back to appeal.
          I beleive you can appeal.
          You must read AAO decisions on BCIS website and then decide what went wrong. If you are ideal candidate to work on this project then you have a case. I beleive it is just chance that weak cases get approved without any hassel sometime but strong cases get stuck...i guess presentation and document assembly contributes a lot to successfull case.

          Question: sending another NIW application is another alternative do you think?

          Comment


          • #6
            Sorry about EB1-OR related conflict
            retrogressed country means ar u from china/india/phil etc countries which had been retrogressed and no VISA numbers are avaliable for till near future.
            MTR means motion to reopne your case which means appeal only.Well i am not perfect in appeal related terminology but its easy to research on that. YUP! filling NIW again will eb relatively "stress free idea" with more letters and additional acheivements.

            Comment


            • #7
              James,
              I strongly believe that you should appeal. At the same time, it sounds strange that your annual salary is $70,000, but you don't have money to hire an experienced lawyer...
              At any rate, do appeal. You have good credentials and you deserve a positive outcome. Also you should try to figure out why your petition was denied. Do you think your Dean sent out something bad to the NSC to ruin your case?

              Comment


              • #8
                Thanks, pwd2005, for your encouragement. I don't think our Dean knew my NIW application - because I didn't tell them, but who knows? Do I need to hire an attorney to appeal? I got a bad experience with attorney. They're just looking for money while not doing their job and even not knowing what to do. I'm now thinking of self-petition, rather than hiring attorney. Is this too risky? I agree that I do need to figure out why they denied my case.

                Comment


                • #9
                  eb1doc,

                  Thanks for your suggestions and answering to my questions - appreciated. FYI, I'm not from those retro countries. I'm still figuring out the reason(s) why my case was denied. why they didn't acknowledge my funding experience? Being a P.I. means a lot to me and to NIW application, I thought. As you suggested, I began examining AAO previous decisions but so far today could not find a case similar to mine (someone who has a grant funding experience like me). Do you know any? Yes, I will definitely send another NIW application hopefully next month after collecting more letters and evidence.

                  Comment


                  • #10
                    Originally posted by duhily
                    Thanks, pwd2005, for your encouragement. I don't think our Dean knew my NIW application - because I didn't tell them, but who knows? Do I need to hire an attorney to appeal? I got a bad experience with attorney. They're just looking for money while not doing their job and even not knowing what to do. I'm now thinking of self-petition, rather than hiring attorney. Is this too risky? I agree that I do need to figure out why they denied my case.
                    Yes, I think you should find a good lawyer, at least to check all your documents. All lawyers look for money, but some of them also do their job, and some are quite responsible. Another thing that you will have to do is getting more recommendation letters.

                    Comment


                    • #11
                      BTW, I could recommend you a good lawyer on the East Coast, if you send me a PM.

                      Comment


                      • #12
                        Originally posted by duhily
                        eb1doc,

                        Thanks for your suggestions and answering to my questions - appreciated. FYI, I'm not from those retro countries. I'm still figuring out the reason(s) why my case was denied. why they didn't acknowledge my funding experience? Being a P.I. means a lot to me and to NIW application, I thought. As you suggested, I began examining AAO previous decisions but so far today could not find a case similar to mine (someone who has a grant funding experience like me). Do you know any? Yes, I will definitely send another NIW application hopefully next month after collecting more letters and evidence.
                        James If u want to add more weightage to your Grants. Try getting letters from Grant revieweing authorities. Also if they mention good things about grant during approval... do send those to BCIS.
                        Last edited by eb1doc; 20th January 2006, 10:47 AM.

                        Comment


                        • #13
                          James,
                          I think your case is strong and you should appeal asap, you have only limited time to do this.
                          Hire a good lawyer.
                          My NIW I-140 was denied in 2003, I had much less salary and still I paid to my lawyer to appeal even though he told me, not much chance, however the appeal was approved in 6 months.
                          My case was different but you may look for my former posts if you want more details about it (including my lawyer's contact info).
                          compass
                          +++++++++++++++
                          NIW I-140 April 2002, AD July 2003
                          Pending background check since oct 2003 until march (?) 2006
                          AD March 21, 2006; GC received April 9, 2006
                          ----
                          N-400 mailed to Dallas, TX on Jan 14, 2011
                          April 19 - interview morning, Oath afternoon - Proud US citizen!

                          Comment


                          • #14
                            Originally posted by duhily
                            I need help!!!! This is a very serious concern to me and my family (including my babies).

                            I received a denial letter on my NIW (i-140) 2 weeks ago from NSC. I guess they don't like my qualification. I'm not sure if I need to appeal it. Please help me on this if anyone knows or has similar case with mine. Below is my story:

                            Assistant Professor in public health (with Ph.D., MPH, MA)
                            6 publications in HIV/AIDS and substance abuse (b or c journals in the field but all scientific articles in the US)
                            Principal investigator for about $46000 grant (funding from state gov't agency) - this one was not acknowledged in both letter to NSC (interesting to know why they did not consider it)
                            more than 20 citations on my articles
                            higher salary (more than $70000/y)
                            peer-reviewer of 3 scientific journals
                            8 reference letters from people that I know of
                            2 supportng letters from indepdent journal editors
                            my 6 year H-1b expires in 10-29-06
                            I-140/485 concurrent application (1-3-05)
                            RFE received and response sent out to NSC in early September
                            Denial letter arrived (12/29/05)
                            I did myself for the inital letter (1-140 application) but hired later an attorney for RFE - it was my mistake hiring a lawyer who never filed or prepared NIW and even NIW RFE responding letter.


                            Of the 3 factors in Matter of NY Dept Transportation, first 2 being met, but the last one is not met, according to their decision letter. It states, "the Service can't conclude that the petitioner presents a prospective benfit that will serve the national interest to a substantially greater degree than that of a qualified US workers with similar qualifications and/or work experience. The petitioner has not demonstrated that it would be contrary to the national interest to potentially deprive an employer of his services by making the offere position available to qualified US workers. No evidence has been presented to establish that the benefit conferred by the petitioner's field of endeavor would be defeated or that the national interest of the United States would be adversely affect if a labor certification were required."

                            My working visa expires in coming October. I'm not positively sure if I need to appeal this decision. If I appeal, I have to do it alone. No money to hire lawyer....Anybody appealed with this similar case? What's the fee for I-290B? The letter says at the end of the letter a fee of $110 shhould be accompanied, but I=290B require a $385 fee... which one is right? Also, how long does it take to get their decision for I-290B?

                            I would greatly appreciate if anyone can share or respond to this. Thanks very much.

                            James
                            Sorry to hear that.
                            One of my friends was in a similar situation at Texas service center. He had an attorney and their reply to RFE was not accepted and they got the denial notice it seems (in spite of good publication and health related work). They were planning to appeal..but at the last minute changed their mind and applied under same category (NIW) again with a couple more letters. It probably went to a different officer the second time..he got his approval within 10 days! Bottom line is everything depends on the officer. You could probably try it again in the same category and hire a good attorney. I think you will be fine. Another option is to apply under EA category.
                            I know it is lot of stress for you and family when something like this happens..I did go through this when I received RFE on permanent position! Do not lose hope..there will always be a way out.
                            All the best.
                            Toxsci.
                            I140 and 485 (EB1-OR). TSC
                            RD-Oct 22, 2004; FP-May 17, 2005
                            RFE-Apr 19, 2005(permanent position); I140 approved on Jun 28, 2005
                            I485-PD 10-22-04. Name-check Submitted Nov. 2004.Cleared on May 19 (received FBI e-mail)
                            I485-Approved on 6-12-06 Approval Notice recd. 6-17-06; Green cards received 6-19-06

                            Comment


                            • #15
                              Toxsci,

                              Thanks for sharing - appreciated. When applying it again (NIW), did your friend use the same reference letters that were used for the initial application? I know I can add few more but my references letters (8 of them) are about one year old and I'm not sure if NSC likes the old ones. Do I need to request for new one?

                              I think I will reapply it in the same NIW category and also will have to appeal it next week. I know I don't have much time for that...




                              Originally posted by Toxsci
                              Sorry to hear that.
                              One of my friends was in a similar situation at Texas service center. He had an attorney and their reply to RFE was not accepted and they got the denial notice it seems (in spite of good publication and health related work). They were planning to appeal..but at the last minute changed their mind and applied under same category (NIW) again with a couple more letters. It probably went to a different officer the second time..he got his approval within 10 days! Bottom line is everything depends on the officer. You could probably try it again in the same category and hire a good attorney. I think you will be fine. Another option is to apply under EA category.
                              I know it is lot of stress for you and family when something like this happens..I did go through this when I received RFE on permanent position! Do not lose hope..there will always be a way out.
                              All the best.

                              Comment


                              • #16
                                Compass,

                                thanks for your comments. What documents did you include when you appealed?

                                Originally posted by compass
                                James,
                                I think your case is strong and you should appeal asap, you have only limited time to do this.
                                Hire a good lawyer.
                                My NIW I-140 was denied in 2003, I had much less salary and still I paid to my lawyer to appeal even though he told me, not much chance, however the appeal was approved in 6 months.
                                My case was different but you may look for my former posts if you want more details about it (including my lawyer's contact info).

                                Comment


                                • #17
                                  How do I answer for the third prong?

                                  Can anyone respond to this? I'm trying to answer the following statement of the denial letter:

                                  "it must be determined that the evidence is insufficient to demonstrate the petitioner's level of experitise is significantly above that ordinarily encountered among his peers, and that his qualifications significantly exceed the "prospective national benefit" that is required of all aliens who seek to qualify as "aliens of exceptional ability"

                                  This is a third prong question... how can I better answer to this question?

                                  Comment


                                  • #18
                                    Originally posted by duhily
                                    Compass,

                                    thanks for your comments. What documents did you include when you appealed?
                                    James,
                                    I did include some new docs and also lawyer prepared a letter for me. I did submit new letters, such as a letter from a patent attorney telling my provisional patents have big chance to get 'regular', and couple more letters from my work. Before denial I got RFE and I now do not remember what I did include to RFE (like, I found 78 citations of my works and I think it went for RFE, before denial) and what to denial. In general, my lawyer argued about comments in denial and stated that still I qualify for NIW, and quoted parts of previously submitted docs.
                                    Also we submitted a video tape with copy from TV news on my work (I was not filmed, just the scientific topic was discussed), lawyer told this is just to get their attention.
                                    Please look my former posts, I replied to someone else and I posted pieces from my lawyer's response letter. I do not have it anymore I think, I am moving and recently I did get rid of a lot such paperwork...
                                    compass
                                    +++++++++++++++
                                    NIW I-140 April 2002, AD July 2003
                                    Pending background check since oct 2003 until march (?) 2006
                                    AD March 21, 2006; GC received April 9, 2006
                                    ----
                                    N-400 mailed to Dallas, TX on Jan 14, 2011
                                    April 19 - interview morning, Oath afternoon - Proud US citizen!

                                    Comment


                                    • #19
                                      AAO Appeal

                                      James,

                                      Your case is exactly same as mine. I did have damn good publications (impact is morethan 15) and over 50 citations, met first two prongs and failed to establish the third prong in NIW (case under NSC). Finally hired a really a very very expensive lawyer and appealed to AAO. Funny, within two days my case has been moved to NSC for further consideration. I am just waiting for the next phase. Need any inputs write to me.

                                      Colo-NIW

                                      Comment


                                      • #20
                                        Originally posted by duhily
                                        Toxsci,

                                        Thanks for sharing - appreciated. When applying it again (NIW), did your friend use the same reference letters that were used for the initial application? I know I can add few more but my references letters (8 of them) are about one year old and I'm not sure if NSC likes the old ones. Do I need to request for new one?

                                        I think I will reapply it in the same NIW category and also will have to appeal it next week. I know I don't have much time for that...
                                        Yes he did use same letters plus 5 more additional letters. He did reapply within 3-4 months of denial (he had no additional publications to add within this time period). I am not sure if one could appeal and reapply at the same time in the same category. I think a good attorney will be able to help you with this. If possible to get new letters it will be good I guess.
                                        Good luck!
                                        Toxsci.
                                        I140 and 485 (EB1-OR). TSC
                                        RD-Oct 22, 2004; FP-May 17, 2005
                                        RFE-Apr 19, 2005(permanent position); I140 approved on Jun 28, 2005
                                        I485-PD 10-22-04. Name-check Submitted Nov. 2004.Cleared on May 19 (received FBI e-mail)
                                        I485-Approved on 6-12-06 Approval Notice recd. 6-17-06; Green cards received 6-19-06

                                        Comment

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