A strange RFE? Employment letter?

J

James_Dick

Registered Users (C)
Hi, Folks in this forum,

I got a letter from BCIS requesting for evidences for my I-485 petition. There is one request in it:

"Submit a currently issued letter or other evidence from the prospective permanent employer that indicates your current position, if any, your proffered position, and proffered wage and indicating that the terms and conditions of the employment petition continue to exist."

My I-485 is based on the approval my I-140, the category of Extraordinary Ability. I sponsored myself. I don't have to have a permanent position for my I-485 petition. I am not quite sure what I should submit to BCIS. I am a postdoc right now, and don't get any permanent job offer.

Any friends here have the similar experience? How did you handle with it? Please share your experience and your idea. I will appreciate any useful suggestions.

Have a nice day,

James_Dick
 
your RFE is not strange at all, what i do find strange is your case: to the best of my understanding, employment-based (EB) immigration is predicated upon the offer of permanent employment by a u.s. employer. one may already be employed in the proffered position as a non-immigrant worker, or in case of future employment, one must take up the position as soon as the permanent residence application is approved.

the only advantage of contending to be an alien of extraordinary ability is that it allows a petition for a migrant worker (i140) to be filed directly under EB-1, and often without going through labor certification by invoking the national interest waiver (NIW). however, that petition is still filed by a sponsoring employer, and, based on that i140, one can apply for adjustment of status (i485). once an i140 is approved, the i485 AOS processing is identical for all applicants, regardless of what route they took for their i140 approval. therefore extraordinary ability/NIW does not obviate the need for a sponsoring employer.

many people have posted questions relating to why couldn't they self-sponsor their immigration cases by being self-employed, or employed by a company they themselves have a controlling interest in, but it does not seem to work.

the foregoing is just stating what i know. i may be wrong. so really the bottom line here is to talk to a qualified immigration attorney.
 
Thanks a lot, Pork Chop.

I just want to know ususally how folks who had similar situation response to this kind of RFE. I talked to an immigration expert in my university, she said maybe the request is a mistake, but I need to take it seriously.

To my limited knowledge, EB-1A and the following 1-485 could be be sponsored by employee himself. Many many guys have done in this way. That's no doubt.

I was wondering if any folks having the same experience can input something, providing any constructive idea. I will appreciate it.

Thanks anyway, Pork Chop,

James_Dick

:confused:
 
Hi

I also have filed in EB1-EA. My case is approved recetly. I filed by myself no attorney. In my case they issued a RFE asking me to submit a currently dated employment letter and aslo to submit evidence that I continuing in the same filed. I am also a Research Associate and my job is also not permanent. In my case I send a currently dated letter saying that I am working full time as a Rearch associate and my salary is $*****like that. It didn't say that I am working in a permanent position.
I think a letter from your professor or department office will be fine. You can also write a detailed covering letter about the work you are doing . It is another way of BCIS checking that you are woking or not.
Good luck
 
Was your RFE for 140 or 485?
We are getting 140 EB1A RFE/my husband was Postdoc, INS knows that his H1B was expiring on July 1st, but we got EADs before then, and then he left his job , his contract expired. He is in the porcess of starting the company and they should sign papers any day now. He will be working in the same field....I bet INS is wondering if he still has a job. If that's the only problem... hmmm... can't wait to get that RFE in a mail. I know sounds strange, but I am very curiuos what they are requesting.
Will keep everyone posted if any interest.
 
I think this RFE is strange

James,

Pork Chop is wrong in saying that EB-11 or NIW petitions have to be filed by a sponsoring employer. They can be self-petitioned by the alien. Not only is labor certification not required, but a job offer is not required.

Technically, one can be self-employed as long as he/she works in the area of national interest or for which extraordinary ability was recognized.

Getting a RFE in this kind of case is not unusual by itself, since INS typically wants some confirmation that the applicant is working in the area of national interest/extraordinary ability. Of course the best proof for that would be employment/job offer in that area. However one could be self-employed and be able to demonstrate activity in the area, for example if they have their own company etc.

What is unusual, is the language of the RFE which is different from the boilerplate language for such cases. I think the examiner has not paid attention to the fact that this an extraordinary ability case and is therefore asking for proof of job offer, (plus proferred position and wage, which are usually terms associated with existing labor certification) and employer.

The correct language for this RFE should be that you should prove that you will continue to work in your area of extraordinary ability. This may or may not involve being employed by someone.

Anyway, I believe the proper response would be to explain to the examiner that the EB-11 category doesn't need a job offer at proferred wage and position. Then you should enclose a letter from your university stating that you are doing research as a postdoc in the area in which your extraordinary ability was recognized. Probably best to get one from your advisor.
 
Re: I think this RFE is strange

I agree with atsokbg....In this case porkchop is wrong......


You are self petioned.........I don't know the technicallity of self-sponsered cases but you don't have much to worry about.......

Check with your lawyer and other posts in this thread[

QUOTE]Originally posted by atsokbg
James,

Pork Chop is wrong in saying that EB-11 or NIW petitions have to be filed by a sponsoring employer. They can be self-petitioned by the alien. Not only is labor certification not required, but a job offer is not required.

Technically, one can be self-employed as long as he/she works in the area of national interest or for which extraordinary ability was recognized.

Getting a RFE in this kind of case is not unusual by itself, since INS typically wants some confirmation that the applicant is working in the area of national interest/extraordinary ability. Of course the best proof for that would be employment/job offer in that area. However one could be self-employed and be able to demonstrate activity in the area, for example if they have their own company etc.

What is unusual, is the language of the RFE which is different from the boilerplate language for such cases. I think the examiner has not paid attention to the fact that this an extraordinary ability case and is therefore asking for proof of job offer, (plus proferred position and wage, which are usually terms associated with existing labor certification) and employer.

The correct language for this RFE should be that you should prove that you will continue to work in your area of extraordinary ability. This may or may not involve being employed by someone.

Anyway, I believe the proper response would be to explain to the examiner that the EB-11 category doesn't need a job offer at proferred wage and position. Then you should enclose a letter from your university stating that you are doing research as a postdoc in the area in which your extraordinary ability was recognized. Probably best to get one from your advisor. [/QUOTE]
 
You can self petition in the "persons of extradordinary ability." The RFE does sound a bit off, but as somebody suggested on this thread, you should consult an attorney to make sure.
 
Just to add to the above posts, not only does EB-1 not need employment, but it does not necessarily have to be based on National Interest.

For example, a Robert Mundell can immigrate to the US and apply for a green card with neither a sponsoring employer nor a NIW.

If a person is an internationally recognized scholar in his/her field (say, a Nobel prize winner) that in itself is a valid basis for immigrating to the US. Needless to say, there are other categories like EB-1 (OR) and NIW that also allow you to do away with labor certification but require a sponsoring employer.

I suspect that you may have already responded to the RFE. It would be interesting to learn how things turned out for you.
 
Mr. Mundell is a Nobel prize winning economist from Canada who, among other things, laid the ground work for common currency areas across the globe, which idea, for example, is behind the adoption of a common currency in Europe. Mr. Mundell currently teaches international economics at Columbia University. You can learn more about him by doing a simple search on google.

The relevance of his example in this thread is that by catalysing the evolution of the common currency in Europe, he may have unwittingly helped create an alternative reserve currency to the US Dollar in the world, which by most accounts goes against US national interest. However, he is considered to be among the foremost economists in that area and therefore would still be eligible to apply for a green card under the EB-1 category, without a sponsoring employer, if he so desires.
 
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i stand corrected!

my knowledge of immigration matters - having been gleaned from such sources as these forums - is limited and quite appurtenant to my own stake in this sordid enterprise. as matters stand, george w. bush is more likely to win the nobel prize for peace than i in any discipline, so i have had to make do with EB-3.

being one of that hoi polloi, i am happy to have gained a nugget of knowledge about EB-1 immigration from the cognoscenti of those elysian fields.

mucho thanks, dudes.
 
Yes, we all learned a lot from this thread...its a news to me ...anyway..thanks Sankrityayan
for the information....on robert...
 
"....from the cognoscenti of those elysian fields." you mean back from the dead?

Hey, beware of what you say now;)

Cognoscenti? you will find few outside of New England.... so, maybe some in VSC land, but certainly none in the rust belt and prairielands that are lorded over by NSC. Here, foxnews is the staple and the president tells us between good and evil. The only reason he is fighting a war is to keep the peace. We are very proud to nominate him for the Nobel peace prize. If he does not win, it is the fault of those Norwegians.

Seriously though, we all file under whatever category we can squeak through. The one good thing about INS bureaucracy is that it is completely class-blind; Bolsheviks or Mensheviks, it is all the same to INS. The I-485 process is a great leveller.
 
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old vs new I-140 forms

According to my attorney, who had to reply to
a similar RFE in my NIW case, the reason officers
are making this mistake of asking for the standard
employment RFEs (rather than say the more
appropriate request for evidence to show one is
continuing in the field of NIW or EA), is that
the old I-140 forms did not have a specific
box for various categories such as EA or NIW. The
new ones do. This might be a reason why the overly
clever adjudicating officers have no clue
whatsoever whether an I-485 they are looking at
is based on a Labor Certificate or not. Needless
to say, they find it more efficient to send an RFE
rather than to look up their own records of
approved I-140.
 
Still waiting for the final approval

Hi, Folks,

Suddenly I saw some replying messages about my old post.

Actually, in the first half of April I responded BCIS on the RFE, mentioned salary, the work what I am doing is still in the field I petitioned in I-140, etc. My boss wrote a letter for me. But up to now, I am still waiting for the final approval. Good news or bad news?

Usually, RFE to EB-1A in this way sounds strange, as the immigration specialist in my university said. Because I petitioned by myself, without employer's sponsorship. From the documments included in the I-485 package, the immigration officer should get any information they want to know. The attorney in my university said that I needed to present an employment verification letter from my current employer to show that I was employed. One of my friends who had ever had similar experience thought the purpose of the RFE was to verify employment, too. I agreed with them.

After 911, it seems many things have been changed. From my case, I got feeling that processing becomes tighten. NSC goes like a snail, without any reasonable explanations. It is hard to get the immigration finalized, ridiculous? Right now, America looks so unfamilar to me? The attitude to immigrants is not so friendly. I don't know how about your folks' feeling.

James_Dick


:)
 
RFE response

Hello,

It is scary to see NSC generating RFEs to NIW and EA cases.
I similarly applied for NIW by myself, got I-140 approval in Nov, 2001, and submitted 485 in Aug, 2002. It seems NSC is issuing REFs to both NIW and EA cases.

I am sure there are many other people out there who will get similar RFEs in the coming months. Therefore, perhaps it is a good idea for some friends here in this forum to post his/her sample response to RFEs (like cover letter, letter from dept, or from the advisor, etc).

Gurus, it is a good idea to proactively send those documents to NSC, saying that in anticipation of the inquiry, here is the info you may be looking for? :)


Lincoln
 
proactively send documents

Lincoln,

I won't hurt sending documents in anticipation of a RFE, however its unlikely that it will help IMHO.
1) Since the green card is for future employment, any proof of employment or that the applicant is still working in the field of NIW/extraordinary ability has to be current as of the time of adjudication of the I-485. If I-1485 was taking a few months to process sending such documents in anticipation could work, but given that it takes years such documents would be very dated by the time they pull your file.
2) You can never guess the mind of the adjudicating officer and what evidence they will ask for.

As someone noted its true that the old I-140 forms don't have a checkbox for NIW and this may very well be the reason that a lazy examiner doesn't look further to see that this is a NIW case and instead issues the standard employment RFE.
 
Great forum, guys! I have posted the note that I am receiving RFE soon and here it is. But not as disappointing as it once seemed. Actually hopeful, but still raises some questions.
Here is an excerpt:
"If you are willing to change your request to second-preference " advanced-degree professional" classification with a national-interest waiver, we are willing to approve the petition for that classification, with no additional evidence of any kind. Such a change would produce no disadvantage to the beneficiary in his pursuit of permanent resident status. Please let us knowwhether you are willing to change your request to second-preference advance degree professional."
Sounds to me like we just need to let them know that we are willing to demote from EA to NIW and everything will be dandy. However, do we need to send a new I- 140 or just a letter Another thing,
they sent it to my husband old job and he does not officially work there anymore. We changed the petition from university to self -petition long time ago and VSC aknowledged that and said it is cool but at the end they still messed up. Surprise, surprise I am not sure how to address that issue when we respond to RFE. Anyone has similar case or any suggestions? Thanks!
 
never heard of such a RFE

Never heard of such a RFE and I thought nothing could surprise me.
But if they are making you that offer why not take it, it won't make any difference for the green card.
If they don't ask for a new I-140 I guess they don't need it, sending one might confuse them.
For the address, you can just inform them in the cover letter once again.
 
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