EA/NIW rejected

M

mayedek

Registered Users (C)
Hello, my EA/NIW petitions and 485 rejected.
I was on H1-B (which was valid till 2006) when I did the petitions and switched to another employer and have been using EAD after I filed 485.
Now that the underlying 140s have been rejected what are my options
to be legal in the country? can i try to file the H1b with the new employer?

thanks.

below are the details of my case:
EA/NIW sep 20,2003 filed. 485 filed feb 10. RFE for both 140 may 2004. RFE replied july 04. NIW rejected sep. NIW appealed sep. 2nd RFE for EA aug 04.
RFE replied oct 04. 485 rejected nov 20.
 
mayedek,

Sorry about your situation.

I am not sure that you can submit a new H1B right now because USCIS reached H1B visa cap for FY2005. They say FY2006 H1B submission will start on coming April. As an alternative you can immediately submit EB1. Please consult a lawyer ASAP.

Could you share to which service center did you submit NIW? What is your area of work?

Thanks.
 
mayedek said:
Hello, my EA/NIW petitions and 485 rejected.
I was on H1-B (which was valid till 2006) when I did the petitions and switched to another employer and have been using EAD after I filed 485.
Now that the underlying 140s have been rejected what are my options
to be legal in the country? can i try to file the H1b with the new employer?

thanks.

below are the details of my case:
EA/NIW sep 20,2003 filed. 485 filed feb 10. RFE for both 140 may 2004. RFE replied july 04. NIW rejected sep. NIW appealed sep. 2nd RFE for EA aug 04.
RFE replied oct 04. 485 rejected nov 20.
Click to expand...

can i ask which center?
 
mayedek,
Make sure you stay in valid status. If you file an appeal it does NOT give you a valid status (while you wait in US), if you want to stay in US after your I-140 is denied, you must have another reason (valid H-1) - this is what my lawyer told me.

If you do not have a valid visa (H-1), and you do not since you used EAD - you may file another I-140 and another EAD, and theoretically keep filing and renewing your EAD's...just cost money...
but (again according to my lawyer) INS will figure out soon if you are filing just to stay legally in US and they will deny subsequent I-140's maybe faster..

I am not sure how long you can stay in US if pending I-140 was all you had; maybe you can claim you did not check your mailbox for a while.. but anyway, if there is no grace period and you don't have a valid H-1 at the moment of getting your I-140 denial - then, immediately file change of non-immigrant (? maybe it is pending AOS) status to a B-1, and indicate the reason as to finish your stuff in US (sell car, etc.) and prepare to move back to your country, this may give you another 6 months of legal staying in US (including the time while your change-of-status application is pending.)

During this time you may file another I-140 or/and another H-1. I think you can file another H-1 even if you had a gap after termination your previous H-1, I think INS will just count your new application using same gap, meaning your 6 years start from your previous H-1 starting date, but you still have time until 2006. This is like transfer...I am not a lawyer but I had similar situation when my NIW was denied.
 
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mayedek said:
Hello, my EA/NIW petitions and 485 rejected.
I was on H1-B (which was valid till 2006) when I did the petitions and switched to another employer and have been using EAD after I filed 485.
Now that the underlying 140s have been rejected what are my options
to be legal in the country? can i try to file the H1b with the new employer?

thanks.

below are the details of my case:
EA/NIW sep 20,2003 filed. 485 filed feb 10. RFE for both 140 may 2004. RFE replied july 04. NIW rejected sep. NIW appealed sep. 2nd RFE for EA aug 04.
RFE replied oct 04. 485 rejected nov 20.
Click to expand...

as far as i know from my lawyer, H1B status has to be continuous. that means if you did not transfer your H1B to your new employer at the time when you changed your job, you can not get your H1B resumed in the US. you will have to go back to US consulate in your home country to get your H1B visa and then come back with H1B status. consult a lawyer ASAP. it is a complicated situation which needs an expert.
 
Sorry to hear

mayedek,

Which center you have filed and one more thing are you in academics or working for company. If you are in academics or in non-profit organization, there is no H-1 cap, you can apply anytime.
 
folks, thanks for your suggestions. more info: petitions filed at CSC.

about 20papers, about 20 citations, tens of review, 3 session chair, about 10 letters, NSF award.

I have not got the 140 rejection letter yet. I only got 485 letter.

Can I appeal, and at the same time submit a new application from the same category, e.g., EA, NIW? what's the difference between motion to reconsider and appeal?

thanks.
 
mayedek said:
folks, thanks for your suggestions. more info: petitions filed at CSC.

about 20papers, about 20 citations, tens of review, 3 session chair, about 10 letters, NSF award.

I have not got the 140 rejection letter yet. I only got 485 letter.

Can I appeal, and at the same time submit a new application from the same category, e.g., EA, NIW? what's the difference between motion to reconsider and appeal?

thanks.
Click to expand...

you should definitely appeal. i know people with much lower credentials got NIW approved.
 
compass, what was your visa status when your NIW was denied. Did you file for B1? if so,how did you do it? what argument had you used in your NIW appeal? thanks.
 
Compass gave me some good advice for appeal. I recommend you do a search on his posting in this forum, also some my threads which I asked many questions after my NIW was denied month ago.
I also think your background is strong and should try to appeal. Could you tell us some reasons in the denial notice? I know it is a long letter, but maybe some points you could argue.
 
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Joo, NIW was denied in august. It is the usual third prong. I sent in the appeal in september. I still don't know what's going on with it. It is almost three months. I don't even know whether they sent it to AAO.
As for EA, I have not received the decline letter yet; so I don't know its contents. But what ever it is, I plan to appeal it.

Did they send your appeal to AAO?
 
mayedek said:
about 20papers,
Click to expand...
That's good. First author, decent journals?

about 20 citations,
Click to expand...
Seems low. Is that common in your field?

tens of review,
Click to expand...
Invited, not passed down?

3 session chair, about 10 letters, NSF award.
Click to expand...
It's an award, not grant? Because grants don't count.

All in all I think you have decent evidence. I think part your problem may be your occupation - it seems to me that people in life sciences have better luck with NIW than those in engineering. And of course whenever there's a denial you've got to wonder whether the best possible argument has been made.
 
That's good. First author, decent journals?

all of them first author. top international journals and conferences.

Quote:
about 20 citations,

Seems low. Is that common in your field?
that's common in engineering.

Quote:
tens of review, Invited, not passed down?
all of them invited, not through anybody, coming from all around the world.
(i submitted 130 pages of e-mail communication detailing all review requests)

Quote:
3 session chair, about 10 letters, NSF award.

It's an award, not grant? Because grants don't count.

I know grants don't count. but if you check NSF webpage, this is an award.
although it is money for future, you would not have got it if not partially for past achievements.

All in all I think you have decent evidence. I think part your problem may be your occupation - it seems to me that people in life sciences have better luck with NIW than those in engineering. And of course whenever there's a denial you've got to wonder whether the best possible argument has been made.

well, I thought I had strong evidence in three areas: publications, original contributions, and judge of others work. I thought award and leadership were additional. I have not received the letter, but if I can predict them,
they will say that the burden is on the petitioner.
 
mayedek said:
That's good. First author, decent journals?

all of them first author. top international journals and conferences.

Quote:
about 20 citations,

Seems low. Is that common in your field?
that's common in engineering.

Quote:
tens of review, Invited, not passed down?
all of them invited, not through anybody, coming from all around the world.
(i submitted 130 pages of e-mail communication detailing all review requests)

Quote:
3 session chair, about 10 letters, NSF award.

It's an award, not grant? Because grants don't count.

I know grants don't count. but if you check NSF webpage, this is an award.
although it is money for future, you would not have got it if not partially for past achievements.

All in all I think you have decent evidence. I think part your problem may be your occupation - it seems to me that people in life sciences have better luck with NIW than those in engineering. And of course whenever there's a denial you've got to wonder whether the best possible argument has been made.

well, I thought I had strong evidence in three areas: publications, original contributions, and judge of others work. I thought award and leadership were additional. I have not received the letter, but if I can predict them,
they will say that the burden is on the petitioner.
Click to expand...

Mayedek,

You should definetely appeal. Since you have so many emails from scientists all over the world, you should approach them from some strong recos. Ask them to mention that you are an expert in this field and that is why they approached you for reviews.

People with lower quals have gotten approved. You stand a very good chance.

Trojanblue
 
mayedek said:
I thought I had strong evidence in three areas: publications, original contributions, and judge of others work. I thought award and leadership were additional.
Click to expand...

Claiming only 3-4 categories in EA case is what they call dicey. Now let me ask you about the evidence,

1. Was those 130 pages of the requests the only evidence that you had for reviewing? I hope you realize that this is in fact evidence of your being invited to participate, not of you actually participating. What you should have for this is letters from editors - one from good American journal and one from good international journal should suffice, saying that you're their reviewer and how great their publications are and how they invite only the best of the best of the best to do the reviewing.

2. Publications are pretty straightforward - I'm sure you did the regular thing with impact factors and all.

3. Original contrinutions can be hard to argue. Basically you need to have external evidence of that. In my case I had a series of letters signed by my advisors that detailed the research done in each and every one of them explaining the importance in very accessible terms, with real life examples of how they might be useful. They also specifically mentioned how much I contributed to that particular paper, since the common INS argument is "there's like five authors here, how do we now you weren't just a gofer?" That's just one thing you can do. For example, getting the editors say that they invite not just the best, but those who made original contributions would be nice - then you can use this letter twice.

Also I've read that the cover letter is very important, but I've never seen mine so I'm not qualified to give you any advice.
 
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lamonte said:
Claiming only 3-4 categories in EA case is what they call dicey. Now let me ask you about the evidence,

in fact i claimed in 7; but I knew pretty much that membership and published material about my work would definitely not fly.

1. Was those 130 pages of the requests the only evidence that you had for reviewing? I hope you realize that this is in fact evidence of your being invited to participate, not of you actually participating. What you should have for this is letters from editors - one from good American journal and one from good international journal should suffice, saying that you're their reviewer and how great their publications are and how they invite only the best of the best of the best to do the reviewing.

the e-mails in fact include reviews themselves; I had two signed letters from editors as well. But having included the reviews themselves would prove that I did the reviews, I thought.

2. Publications are pretty straightforward - I'm sure you did the regular thing with impact factors and all.

Yes, did the impact factors, but the impact factors themselves maybe misleading.

3. Original contrinutions can be hard to argue. Basically you need to have external evidence of that. In my case I had a series of letters signed by my advisor that detailed the research done in each and every one of them explaining the importance in very accessible terms, with real life examples of how they might be useful. They also specifically mentioned how much I contributed to that particular paper, since the common INS argument is "there's like five authors here, how do we now you weren't just a gofer?" That's just one thing you can do. For example, getting the editors say that they invite not just the best, but those who made original contributions would be nice - then you can use this letter twice.

I had the letters, & citations in this category.

Also I've read that the cover letter is very important, but I've never seen mine so I'm not qualified to give you any advice.
Click to expand...

I think i did a pretty decent job in RFE, but maybe a 15 page explanation with all the supporting evidence was too much to handle. I don't know.
 
mayedek said:
I think i did a pretty decent job in RFE, but maybe a 15 page explanation with all the supporting evidence was too much to handle. I don't know.
Click to expand...

Mayedek,

3 lines on the potential scientific value of your work from an independent expert is worth more than 30 pages of self explanatory notes, no matter how much evidence you produce. Please try to get 3 or 4 international experts to testify to how good you are and the importance of your work.

Trojanblue
 
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