Christmas gift from TSC - a strange RFE!

CD4help

Registered Users (C)
Dear all,

I filed (e-file) NIW I-140 to TSC at the end of July. I got email notification from CRIS last week about the RFE, and I got the letter two days ago. The whole content of the RFE is as following:

REQUEST FOR EVIDENCE

This office is unable to complete the processing of your petition without further information. Please read and comply with the request below, then submit the evidence to the above address. Include a copy of this letter and place the attached gold sheet on top of your documents.

The petitioner has filed Form I-140 for classification under Section 203(b)(2)(B)(i) of the Immigration and Nationality Act as a member of the professions with an advanced degree or a petitioner of exceptional ability. In addition, the petitioner is requesting that the job offer and the correlating labor certification from the Department of Labor be waived in the national interest.

A recent precedent decision, Matter of New York State Dept of Transportation, enumerates factors that must be considered when evaluating a request for a national interest waiver. See Matter of New York State Dept of Transportation I.D. 3363 (Act. Assoc., Programs, August 7, 1998). First, it must be shown that the petitioner seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. The final threshold is that it must be persuasively demonstrated that the national interest would be adversely affected if a labor certification were required for the petitioner.

The labor certification process exists because protecting the job opportunities of U.S. workers is in the national interest. The petitioner must establish that the petitioner will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Because the labor certification process is already in place to address labor shortages, the national interest waiver is not to be based on ameliorating a local labor shortage.

The petitioner appears to be part of a talented team doing research that could be of national interest. The team is just one of many that are working on the same type of research.

Submit evidence to establish persuasively that the national interest would be adversely affected if the beneficiary were required to obtain labor certification fro the U.S. Department of Labor. Would a U.S. worker with the same minimum qualifications be able to perform the same occupation and serve the national interest to a similar degree? How will the individual alien serve the national interest to a substantially greater degree than other individuals having similar credentials in the field? Please submit persuasive documentary evidence to substantiate your response.

Submit evidence that demonstrates the alien’s specific prior achievements which would justify the projected future benefit of the alien to the national interest. Evidence may include, but is not limited to, copies of articles, publications, testimonial letters from others in the alien’s field, and other evidence to demonstrate all of the beneficiary’s exact prior achievements and the exact influence the beneficiary has had on the field. Include copies of the beneficiary’s published material and evidence to indicate the number of citations of each of the beneficiary’s published works. Such evidence may take the form of a citation index.

Any additional evidence submitted will be considered in conjunction with the current record to determine the petitioner’s eligibility for this classification.


Please submit the requested information within 42 days from the date of this letter. Failure to do so may result in denial of your petition.

Sincerely,

David L. Roark, Director
Texas Service Center

Officer #1010

Before we go any further, here is a summary of my credentials:

M.S. + Ph.D. from a top tier U.S. university.

4 papers in good journals (all English) with 80+ citations and 4 international conference presentations at the time of filing.

8 reference letters, 4 independent and 4 from people I personally know.

The weird thing is that it seems the officer either did not read my supporting documents at all, or they got lost somewhere. The reason why I say this is because I have specifically included a citation index PLUS some statistics about how my citation numbers stand up compared to the others in the field, along with the excerpts from some of the most prestigious review journals where my stuff was specifically discussed (rather than mere footnote citations). Yet, the officer still wanted to see the citation index? :confused:

Since the timing (the July VB fiasco) cannot be even better, I think there is a good chance that my supporting documents are missing. Is there any way to confirm this? As for the RFE itself, do I need to re-submit ALL the documents I sent previously, or just focus on what mentioned in the RFE? Also, do I need to mention all three prongs of NIW again in the covering letter for RFE, or just the third one (why my case merits the waiver of LC)?

Finally, I notice that they only gave me 42 calendar days to reply. It is actually only 5 weeks, since I got the actual RFE hard copy one week after the letter date. Is it a little bit short (particularly, it's the holiday season and it will be very tight to find more independent letters)?

As always, all your comments and suggestions will be greatly appreciated and happy holidays! (I wish I could say that to myself under this situation...)
 
Hopefully it won't be too bad. I don't think it's about missing documents since they mention that you appear to be part of a talented team etc etc. It's more likely that your case wasn't presented to USCIS well enough. In other words, your cover letter may not have been written/organized well. Did you / can you consult an attorney?
 
Thank you very much for the feedback, jk0274. What you mentioned is surely a possibility; however, it will convince me more that missing document is not the case if the RFE mentioned anything more specific to me, such as the impact index or circulation numbers of the journals where I published my articles (which I did list as an exhibition in my original filing, BTW). In particular, the citations are the key point in my petition and it would be difficult to miss it, even if we assume the whole covering letter is screwed up (which again remains as a possibility but not a highly likely scenario). Now, my question is: apparently I am going to (re-)submit all the reco letters and citations I sent in previously with some updates (I am aware that publications and citations will be counted only if they are prior to the original filing date, or PD). In the reply to the RFE, is it OK to say something like, "...as mentioned/included in the original filing, the citation records and testimonials from the experts in the field clearly indicate the impact the petitioner has made to his field...," or just pretend this is an all new petition and thus no reference to the original filing at all? I try to get the right "tone" for the reply to this RFE.

As for lawyers....personally I have a mixed feeling about them. Honestly, after visiting this forum for more than two years, I feel that I have learned more from this forum than from my lawyer in terms of making arguments to satisfy the NIW's criteria. Lawyers can be very helpful though in dealing with some complicated issues, such as AP/EAD and maintaining non-immigrant visa status while the I-140/I-485 is in processing.
 
Maybe you just never found a good lawyer. I think the most important benefit of hiring a lawyer is that the lawyer is just about as clueless about your research than your standard-issue Joe Sixpack Immigration Officer. A lawyer can explain your research in a way the IO is going to understand and appreciate. Maybe you should find a lawyer for your RFE.
 
i would get a lawyer and do a STRONG cover letter!!!! is worth it!!! they know what their doing. Good luck
 
CD4help,

Did you have a lawyer or not. You said "I feel that I have learned more from this forum than from my lawyer in terms "

Do you mean your lawyer did a bad job?

Personally, I see that your citations are excellent... I am in the same boat, I am still waiting for my RFE letter to see what is it about. I would suggest you resubmiting the material you have sent out earlier, and then append new material to address the RFE point by point.
 
CD4help: It has happened to many people that USCIS lost the supporting documents (when the I-140 was e-filed). So, there is a small chance that USCIS lost your package. However, I do see that USCIS RFE says: The petitioner appears to be part of a talented team doing research that could be of national interest. The team is just one of many that are working on the same type of research- which indicates USCIS know your qualifications.

In your cover letter, did you address all the prongs for NIW (by quoting the relevant laws and addressing each of them separately ?). I mean, the following prongs:

  1. it must be shown that the alien seeks employment in an area of substantial intrinsic merit
  2. it must be shown that the proposed benefit will be national in scope
  3. the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required
  4. it has to be shown that aliens ability to serve national interest is significantly above than available US worker with same minimal qualifications
  5. it must be shown that the alien has a past record of contributions to areas of national interest justifying future benefit to national interest
The reason I ask this is, when I go through the rest of the RFE, it seems that you haven't addressed each of the prongs separately and established how you satisfy them. I hope I am wrong.

So, here is my conclusion: if you addressed the above separately, then they missed your packet (or didn't go through your cover letter !)- else, you have to rewrite cover letter with clearly establishing the above prongs.

Well, I am not an expert- my NIW is with USCIS, not heard anything so far.
 
nscagony, tipotodo, and JerIst,

Thank you all for your comments. Well, it's a long story: this is actually the second time I try the NIW. The first time I did NIW was May 2006 @NSC, got RFE in February 2007, replied the RFE in May 2007, and it was eventually denied in July 2007. At that time, I did have a lawyer, but I do not think he is doing too fantastic a job on my petition. However, I do not want put all the blames on him, but rather I had a bad luck that my case was handled by a novice and incompetent IO - it was clear in the denial letter that the IO misunderstood what one of my reco letter writers used to praise my accomplishment and instead the IO used that to attack my petition. If anyone is interested, please find some of my earlier posts. Anyway, I decided to move on and filed the current NIW by myself. Since I have experiences this time, I really emphasized how I made impact to my field by focusing on my citation records and even went on for "preemptive strikes" - explained why I did not seem to have too many papers (my weakest point, in my opinion). I have to say this humbly that I understand my case is not very strong compared to many members of this forum (well, a lot of people are well qualified for EB-1A and using NIW as a "backup" plan), but it should be enough to satisfy NIW.

So, that's the background of the story. Since this TSC RFE is so vague compared to the one I got from the NSC, plus the IO specifically asked something that was clearly included in the original filing (citation index), together these two make me wonder whether the IO got my supporting document at all. Now, one potentially tricky question is: do I need to mention "quality rather than quantity of publications that matters" in the RFE? That was asked in my first NIW RFE from the NSC, but not this time. Does "Do not ask, do not tell" also apply here?

JerIst, I am sorry to hear you got the RFE as well - your credentials are much stronger than mine (even though we work in different fields). Hopefully it is something simple (one item sought in my first RFE was the W-2 form back in 2000!) If the RFE specifically asks for citations, then I think you need to give them the numbers and tell them there are other ways than citations to demonstrate your contribution and impact to the field. In that case, definitely more independent letters will help. Good luck!
 
Lawyers can be very helpful though in dealing with some complicated issues, such as AP/EAD and maintaining non-immigrant visa status while the I-140/I-485 is in processing.

Hold on, are you saying that you believe AP/EAD applications are 'more complicated' than filing an EB-2 NIW petition? Come on now...

It appears to me that your self-prepared petition was inadequate. I say this for two reasons: 1- It does not appear that your petition listed each of the NIW statutes (i.e. sections of the law) and listed how your credentials fulfilled each of these requirements. 2- You actually described why you have a low number of publications, i.e. you described a major weakness in your petition instead of emphasizing your strengths. You shot yourself in the foot on that one.

If I were you I would immediately seek legal advice from a reputable lawyer, one who has actually won a good number of NIW/EB1 cases. You must be in a situation where there are people around you who can recommend somebody to you.
 
Hi HelpingHand,

Yes, I did address all the prongs you mentioned separately with specific supporting document(s). For example, the citation records and reco letters were used to demonstrate how I can serve national interest substantially greater than a U.S. worker with minimum qualification. You are right that either the IO did not read through all my supporting materials, or they got lost. Maybe they got the cover letter but somehow part or all the supporting materials were lost, and that's how they know my qualification but they had no supporting materials to validate my claims. It's not too big a deal to re-claim all the prongs in the RFE, but it's nevertheless annoying...
 
Hold on, are you saying that you believe AP/EAD applications are 'more complicated' than filing an EB-2 NIW petition? Come on now...

It appears to me that your self-prepared petition was inadequate. I say this for two reasons: 1- It does not appear that your petition listed each of the NIW statutes (i.e. sections of the law) and listed how your credentials fulfilled each of these requirements. 2- You actually described why you have a low number of publications, i.e. you described a major weakness in your petition instead of emphasizing your strengths. You shot yourself in the foot on that one.

If I were you I would immediately seek legal advice from a reputable lawyer, one who has actually won a good number of NIW/EB1 cases. You must be in a situation where there are people around you who can recommend somebody to you.

Hi jk0274,

First, I did not say AP/EAD are "more complicated" than NIW - I only said they can be complicated issues and lawyers usually are quite good in dealing with them.

Secondly, I did list prong by prong (based on NYDOT precedent) that why my case is suitable for NIW rather than LC, and that's part of the reasons I thought they might have misplaced my supporting document because everything was there (or supposed to be there, I should say).

Third, the low publication numbers: Rather than "you described a major weakness in your petition instead of emphasizing your strengths," I did (and I believe everyone else would do the same) emphasize my strength. That's how I came up with a simple statistics to compare my citation records with others in the field. I just tried to say "quality is more important than quantity" as a preemptive strike to minimize the chance this issue is raised again in case of RFE, due to my previous experience with the NSC RFE. As weird as it may sound, but honestly I am glad that this time they issued a general RFE rather than grilling me on the low number of publications.

Finally, about lawyers: sure, a good lawyer will help, but do we know why some lawyers seem to have higher or even much higher than average success rate of approvals in EB-1/NIW? Other than they are simply better than the others, one possible reason is that they only take cases that are almost guaranteed to get approvals. Before people start to jump on me, let me say this first: I only said "some lawyers," so please do not take this as a generalized implication. I remembered when I was shopping around for a lawyer, I contacted 10 lawyers or so, and 6 of them did even bother to reply me, the other 2 of them told me they were not going to take my case because it was not as strong as they liked. Again, please note that I have no intention to start flame debating the importance of lawyers here, and I would be happy to hire a competent lawyer so I do not have to worry about this, even if I have to pay a lot to him/her. I am just describing my personal experience. I do appreciate all the comments I got from all the friends on this forum - you are so kind to spend your precious time (in particular, during the holidays) and try to help me.

Happy holidays!
 
CD4help,

Your story with NSC makes me worried.

In regards to your RFE, I guess you should be more clear and try to see what are the possible mistakes that you might have made in your petition if any.

Also, I assume the IO have some sort of a form that they need to fill in regard to NIW cases. For example, the IO should fill in this form with the reasons why he is approving or disapproving a certain petition. The reason is that for consistency and because other will review his work. In essence, IOs might only skim through applications and not necessarily read it line by line. Maybe having these things in mind might help you addressing the RFE.

Becasue of my RFE, I feel a little bit disoriented my self and might not be at a position to give you the best advice.

good luck!
 
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