My EB2-NIW RFE Letter!

JerIst said:
jk0274,
Your citation record is surely excellent and I believe it is of the quality expected in an EB1-EA filing... :) Wish you the best!
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Oh I don't know about that - my lawyer said that papers that are just cited at the end of a sentence (which most of mine are) don't really count much. It's a lot better when other papers actually refer to my research or discuss it explicitly, rather than just stating something and adding a citation at the end. But I'm obviously hoping for quantity over quality as far as citations are concerned. I did add a few pages of examples where other papers actually mentioned something about my findings explicitly, even if it was just a sentence or two. But I definitely did not include the front page of every single paper that cited my work. We'll know soon how good my case is, I'm actually pretty worried now that I see how easily they are issuing RFEs, especially as I have no underlying status! Thanks for your best wishes!
 
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Thank you for clarifying it, JerIst. I think I can squeeze out another ten citations or so if I adopt your approach. :)

jk0274, you are right that citations that specifically discuss your findings carry much more weight than the "footnote" citations, but I have to say >200~300+ citations is definitely not something to be ignored (actually, that's one of the most impressive numbers I have come across in the forum in the last two years), even though most of them are footnote citations. I do not know about the rest of your credentials, but you should have no problem in claiming the authorship category if try EB-1A. Maybe something to think about....
 
Thanks, I hope so. My lawyer didn't think I was EB-1 material at NSC. If I had done it earlier when I could still file at Vermont, it would have been a different matter. My credentials are modest: cancer research, filed NIW at the end of my 5-year post-doc although listed my upcoming industry position in section 6 of the form I-140 (where I am now), 6 recommendation letters only one of whom I have actually worked under (my PhD advisor), others are collaborators/aquaintances including one from Italy and the rest from all over the US (no letter from post-doc advisor), 18 or so journal papers (5 1st-author original research, another 2 first author reviews, journals are not that top-notch though, and the rest are secondary authorship), 2 book chapters (1st author on both), 304 citations, membership in AACR (lawyer didn't mention) and full membership in Sigma Xi (which lawyer did mention), invited reviewer for only 2 journal submissions (lawyer included those) and 13 more that I did with my post-doc advisor (lawyer didn't include those as my advisor was the invitee). A couple of entries in Genebank, etc, which my lawyer included, and a couple of awards I have including one from a government agency which my lawyer did not include. My lawyer presented me as a full-fledged cancer researcher, not as a post-doc, which is why she didn't include my 'fellows' awards as they were for post-docs and grad students. My letters did not contain any references to me working under somebody except the one from my PhD advisor, but as a talented researcher in my own right. I was not given a template for my letter writers, because that way each would be unique. So I have my fingers crossed.
 
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jk0274,

If you what you mentioned is not talent, then what is talent? If you are from ROW, then maybe you do not need to invest in an EB1-EA petition. Else, you may want to do so as you have good chances.

It seems that NSC is excelling the adjudication of I140 cases in general per the latest processing dates posted yesterday.
 
HelpingHand said:
JerIst
Want to ask you. Did you file as `an alien of Exceptional ability' or did you file as`a member of professions holding an advanced degree' ?. Also, did you mention in your letter (other than in the I-140 form) you are requesting NIW ?. In other words, did you clearly emphasize in the cover letter something like ``I hold a Ph.D in the field of Computational Intelligence. This petition is on the basis that I am a member of the professions holding an advanced degree. Please note that I am requesting a waiver of the labor certificate requirement under 8 CFR §204.5(k)(4)(ii) as such a waiver is in the national interest''.

I am puzzled because why should they ask professional memberships, 10 years experience etc. if you claim to have only advanced degree. [Yes, I agree there is only one check box to fill in the I-140 whether it is Advanced Degree or Exceptional Ability- however, in your cover letter you can clearly say which one you are claiming for]. To me it looks like they considered you for Exceptional Ability, may be because you didn't clearly emphasize in your cover letter that you want to be considered for Advanced Degree. Also, it seems that they didn't consider you in NIW, otherwise why should they ask for job offer letter ? (yes, I see that they write that your work is in National Interest and has substantial intrinsic merit). Sorry, I couldn't help much- because I am thoroughly confused. Probably they didn't read your cover letter at all. They just read what reco. letters say.
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HelpingHand, and all who knows the answer, please help!
You asked JerIst if he “filed as `an alien of Exceptional ability' or did he file as`a member of professions holding an advanced degree’? This is a good question because I might have committed a relevant mistake.

But as you might know, in the general I-140 form, you can’t separate between A member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Seeking an Exemption of the Requirement of a Job Offer in the National Interest Waiver because both categories are lumped in one option (one check box) separated by the junction phrase “or” (the last option in the form)

Now I think it is only possible to emphasize which category you base your claim on in the cover letter. In my case, I think I mixed between both of them and I even but the address of my cover letter as follows:

"...Dear Sir/Madam:

This is to file a concurrent I-140 -- Immigration Petition for Alien Worker for myself under the section: A member of the professions holding an advanced degree or an alien of exceptional ability - National Interest Waiver, (Section. 203 (b) (2)) and I-485, Application to Register Permanent Residence or Adjust Status..."

I did not remove the “OR” from the category!!! Then, in the body of the letter I put the Qualification Summary (all degrees including doctorate and postdoctoral research)
Spoke about my current research and post-doc position and achievements.

BUT I explained in details how my background and talents can benefit U.S.:
1. Improve the U.S. economy:
2. Improve wages and working conditions of U.S. workers:
3. Improve the environment of the US and make more productive use of natural resources:

I also mentioned about professional memberships, years of experience, I think I claimed Exceptional Ability, and didn't clearly emphasize in my cover letter that I want to be considered for Advanced Degree alone But I did explicitly request NIW. Now what does it mean to base you petition only on Advance Degree, does that mean it is easier? No need to talk about your talent, achievements. I am confused now!

Do you think mixing the two criteria and not being specific is a problem???? Well, my lawyer did not comment on my cover letter to the contrary he only said it is good one!!!
 
Anafiz,

My lawyer wrote my cover letter, so I do not know for sure how to answer your question. I do recall that when I filled the I140 form electronically, the laweyer asked me only to double check my name address, things like that, but I noticed that the checkmark was for the lumped statement you mentioned. This is everything I can recollect.
 
I had read a number of case studies (USCIS denials actually) where the USCIS officer admonishes the applicant's lawyer for trying to present the applicant both as an alien of exceptional ability and as a holder of an advanced degree. The USCIS officer states that the law requires one or the other, so when a holder of an advanced degree is presented as a person of exceptional ability, the USCIS officer responds that it is a 'moot point' as far as the application is concerned because the applicant has already fulfilled the initial condition by virtue of holding the degree. The officer then proceeds to deny the petition based on inadequate evidence for the three NIW prongs. I told this to my lawyer before we filed, and she dismissed it, saying that even if I have an advanced degree I still have to show exceptional ability. My lawyer is probably correct: when you look at the three prongs of NIW, the last one is clearly a call to demonstrate exceptional ability "deluxe".
 
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From the link JerIst provided:

Q: To apply for an NIW, do I have to be both an Advanced Degree Professional and Alien of Exceptional Ability?
A: No, the alien only needs to satisfy either the "Advanced Degree Professional" or the "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that this fulfills the minimum requirements, which allows the NIW case to be considered. It does not guarantee a successful NIW case.

Again, I am not an expert. What I believe is that you clearly mention which category you apply for- then, list all your achievements/credentials so as to satisfy the 5 prongs I listed above in my previous post. I cannot, for sure, this is the way to do it- this is the way in which I did it.

Anafiz, why did you hire a lawyer if you had to write the cover letter yourself ?- just curious.
 
jk0274 ,

What I do not understand is, when you hold an advance degree, to be considered for NIW, what else you need to provide? Is it a position that requires and intrinsic merit, and also to be national in scope...? What else is needed for approval...

In my case, the RFE letter admits me meeting those two requirements. They say that initial evidence submitted shows that the positions I seek are national in scope and are of intrinsic merit... But why are they asking me to prove my exceptional ability too? The last three points of my RFE letter is really about exceptional ability..! I am also confused like anafiz... The following points appearing in my RFE are defintely related to exceptional ability part.

If applicable, please submit evidence in the form of letters from current or former emploers showing that you have at least ten years of full-time employment experience in your feild of endeavor.

Please submit evidence of your annual salary, or remunerations for your services in your field as evidence of your exceptional ability.

Please submit evidence of your memberships in professionals associations.

Please submit additional avidence of your personal recognition for achievements and significant contributions to your field by peers, governmental entities, or professional organizations.
 
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jk0274 said:
I had read a number of case studies (USCIS denials actually) where the USCIS officer admonishes the applicant's lawyer for trying to present the applicant both as an alien of exceptional ability and as a holder of an advanced degree. The USCIS officer states that the law requires one or the other, so when a holder of an advanced degree is presented as a person of exceptional ability, the USCIS officer responds that it is a 'moot point' as far as the application is concerned because the applicant has already fulfilled the initial condition by virtue of holding the degree. The officer then proceeds to deny the petition based on inadequate evidence for the three NIW prongs. I told this to my lawyer before we filed, and she dismissed it, saying that even if I have an advanced degree I still have to show exceptional ability. My lawyer is probably correct: when you look at the three prongs of NIW, the last one is clearly a call to demonstrate exceptional ability.
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Thank you JerIst very much, the link you provided explained it clearly the difference between filing based on exceptional ability or advanced degree . I think I lacked the sound understanding of NIW when I prepared my package. I wish my attorney did not include my cover letter as is and he prepared his own. I will write to him now to discuss this thing with him.

But what will be there in one’s cover letter if it solely based on advance degree????? I mean how many persons have advance degrees in this country? Does that mean all can qualify for NIW?

jk2074,
Thanks for your reply, but on the first part of your reply you did not recommend applicant's lawyer to present the applicant both as an alien of exceptional ability and as a holder of an advanced degree. You said “The USCIS officer states that the law requires one or the other, so when a holder of an advanced degree is presented as a person of exceptional ability, the USCIS officer responds that it is a 'moot point' as far as the application is concerned because the applicant has already fulfilled the initial condition by virtue of holding the degree. The officer then proceeds to deny the petition based on inadequate evidence for the three NIW prongs.”

But in the second part of your reply you mentioned “I told this to my lawyer before we filed, and she dismissed it, saying that even if I have an advanced degree I still have to show exceptional ability”. You even said: “My lawyer is probably correct: when you look at the three prongs of NIW, the last one is clearly a call to demonstrate exceptional ability.” I think there is contradiction in your point of views. In the first part you said there should be no mixing and in the second part you said one need to demonstrate exceptional ability!!! I don’t blame you, it looks we need an expert here!
 
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HelpingHand said:
Anafiz, why did you hire a lawyer if you had to write the cover letter yourself ?- just curious.
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Because initially I wanted to do it myself, and I prepared all materials required, then I changed my mind wanted to strengthen the case, and when I hired him, I sent him my cover letter but did not tell him to consider it as a draft. I only told him this is my cover letter. I wish my attorney did not include my cover letter as is and he prepared his own. I will write to him now to discuss this thing with him.
 
It seems USCIS is becoming more and more stringent. I do now know what will happen when I submit.
You have very impressive record.
If you had already worked in any funded projects, did you include them?

When the RFE comes is it possible to reply them saying some of the evidences are not required.
They said minimum requirements, that does not mean we have to give evidence for all, right?

In your OP, you wrote
If applicable, please submit evidence in the form of letters from current or former emploers showing that you have at least ten years of full-time employment experience in your feild of endeavor.

Please submit evidence of your annual salary, or remunerations for your services in your field as evidence of your exceptional ability.

Please submit evidence of your memberships in professionals associations.

Please submit additional avidence of your personal recognition for achievements and significant contributions to your field by peers, governmental entities, or professional organizations."
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in this can you just give one or two and say others N/A?
 
Think of it this way JerIst:

There are two types of "Advanced Degree or Exceptional Ability". Both are EB-2. The first is "Advanced Degree or Exceptional Ability for applicants not seeking a national interest waiver". For such applicants, you need labor certification and a sponsor, but because you either have an advanced degree or you are of exceptional ability, you can apply under EB-2 instead of EB-3. This is useful for visa number availability, etc. If you don't have a masters or PhD for this category, you have to satisfy the conditions for "exceptional ability" as defined by USCIS. But you do not have to satisfy the three prongs of NIW because you are being sponsored with a labor certification.

The second type is what we are doing: "Advanced Degree or Exceptional Ability for applicants who are seeking a national interest waiver". For this, you have to provide the same evidence as the first type plus evidence to support your request for a waiver of the labor certification which involves the three prongs (intrinsic merit, national scope, outweighing the national interest of the labor certification process). This is where things get confusing:

If your cover letter requests consideration under EB-2 because of 'exceptional ability' as mine (and apparently yours) does simply because that's what the lawyer chose to write, the USCIS may choose to ignore the fact that we hold PhDs (because we didn't state 'advanced degree' in the cover letter) and hold us to the requirements of "exceptional ability" which include 10 years experience, salary, etc. Upon further consideration, here is what I think happened in your case: The USCIS wants a little more evidence to satisfy the third prong of your NIW requirements (to outweigh the national interest of requesting labor certification) AND wants more evidence for 'exceptional ability' as defined by USCIS which would be required even if you weren't filing for NIW. What you should consider in your RFE response is very carefully informing the adjudicator that, pursuant to the category you selected, holding an advanced degree fulfills the requirement for filing under EB-2 and salary, 10 years, etc are thus not required, but you must phrase it very respectfully and carefully so that the adjudicator will not deny your petition and tell you to file again under 'advanced degree' instead of 'exceptional ability'. I would be very surprised if this happens, because it's not like you filed under the wrong category, but phrase it carefully nevertheless.

This is really a case of an inexperienced or overly persnickety adjudicator. It seems that our lawyers (maybe the same lawyer?) didn't foresee this coming out of Nebraska. I will probably face the same problem if I have a similarly-minded adjudicator. My lawyer apparently considered the three prongs of NIW to overlap with the requirements for 'exceptional ability', which while almost true, is not 100% true at all.
 
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Anafiz,

Yes, I confused myself too, sorry about that. But I believe my post immediately above clarifies things (especially the last small paragraph), let me know what you think. My lawyer did assume that satisfying the three prongs of NIW would cover the bases for 'exceptional ability', and in her experience that is true. But when we filed in early 2007, my lawyer was much more experienced with VSC not NSC, which apparently has more annoyingly strict adjudicators who will ignore evidence of the advanced degree if the cover letter doesn't explicitly claim that it is what the EB-2 petition is based on. Apparently in VSC, they weren't that picky.
 
Dear jk0274, anafiz, and NIW_help,

Thank you greatly for your insights.. I am now more informed about what is going on.. I have just checked the cover letter, my lawyer have previously sent me the table of contents of my cover letter.... In the cover, here is what is written:

Re: My Last Name, My First Name
EB-2 Alien with an Advanced Degree in the Sciences and
Waiver of Labor Certification in the National Interest;
Citizen of Israel

So clearly, my lawyer never mentioned the word exceptional ability.... The words exceptional ability, and extraordinary ability, appear sporatically in my recommendation letters.....

In the RFE letter, when they asked me about the 10 years experience, they preceded that statement with the word "If applicable"..

But clearly, my application was complete and should have been approved because I am having an advanced degree, I am according to their admission seeking a job with high intrinsic merit, and they agree that the evidence I submitted shows that the scope is national...

I think I should have been approved... But I do not know why for some reason the adjuicator decided that I should prove the exceptional ability part too!!!
 
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I'm starting to get much more worried about my own petition than I was before because I just looked at my petition letter again (have avoided it for fear of findings things to worry about) but I realized that my entire petition is based on the following intro:

This is an Immigrant Petition for a Scientist of Exceptional Ability meriting a National Interest Exemption. Enclosed, please find my G-28, an I-140, Form ETA-750B, a check for $195, Dr. xxxxxx’ Curriculum Vitae; and to satisfy

8 CFR 204.5(k)(3)(ii) – documents indicating exceptional ability in the sciences

My lawyer then lists ALL of my material - everything - under the heading of requirements for meeting the "exceptional ability" clauses. My achievements are not presented in any way as addressing the three prongs of NIW. Apparently my lawyer assumed that my 'exceptional ability' material (publications, letters, etc) would de facto cover the NIW prongs (or at least, the third and most difficult one). Perhaps she did this because they let it pass at the Vermont Service Center. My PhD isn't even mentioned until the very end of the letter as an afterthought. It appears very likely that I'm going to get slapped with an RFE that I would rather prefer an actual flogging over. Yikes!!
 
jk0274,

I think you should just not worry about it. It seems that USCIS officers do not stick or follow declared rules that we can count on. In other words, they are un predictable for most cases anyway... I think you just wait and see what happens... Everything might just go smoothly without any RFEs and so on... Hang in there!
 
jk0274 said:
My achievements are not presented in any way as addressing the three prongs of NIW.
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Hi jk0274,

Do you mean that you/your lawyer did not present your case prong by prong (its intrinsic merit, it is national in scope, and NI will be adversely affected if a LC were required) for NIW? That can be a little confusing to the IO....

On the other hand, as JerIst pointed out, these IOs do not seem to follow their own rules very well and they are very unpredictable. Hopefully you will get through without too much trouble.
 
My lawyer presented my case prong by prong - but not the three NIW prongs, but rather four of the exceptional ability prongs that those who do NOT have an advanced degree would have to demonstrate regardless of whether they were applying for the EB-2 category under NIW or labor certification. It's all confusing.... yeah, I'll just wait and see what happens.... The last prong on this list, achievements and significant contribution, is the longest described in my cover letter (publications, etc etc). There is a blurb near the end of the cover letter about how cancer research is in the national interest, but that's pretty much it... either she is relying on the IO to regard the entire 'exceptional ability' evidence as de facto satisfying the third prong of NIW, or she has some other presentation agenda of some sort...
 
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