EB-1 EA denied, need help!!

C

chiron

Registered Users (C)
I filed my EB-1 EA by myself on March 2004 to Nebraska Center, receive the RFE on Feb 2005. In the RFE, they just list the 10 criteria for the EB-1 EA petition and ask for three of them.

I met 8 of them. And the most important is that I have 6 patents, two of them are licensed and been reported by TV and newspaper on the new inventions. But in the denial letter, they just say this can not be considerred since these proofs were presentated after the initial file on 2004. The denial letter was received yesterday, no sleep at all.

What I can do now? I was learned from a paralegal that it usually took several years to appeal. Is it right?
 
chiron said:
I filed my EB-1 EA by myself on March 2004 to Nebraska Center, receive the RFE on Feb 2005. In the RFE, they just list the 10 criteria for the EB-1 EA petition and ask for three of them.

I met 8 of them. And the most important is that I have 6 patents, two of them are licensed and been reported by TV and newspaper on the new inventions. But in the denial letter, they just say this can not be considerred since these proofs were presentated after the initial file on 2004. The denial letter was received yesterday, no sleep at all.

What I can do now? I was learned from a paralegal that it usually took several years to appeal. Is it right?
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Do you have patents or patent applications ? And how many names are on the patents ? USCIS doesn't like patents too much since they don't tell anything about your international reputation and are not peer-review. You should explain in a more detail how you think you met 8 criteria otherwise it is hard to give any suggestions
 
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yes, I do have patents and patent applications. In my patents, there are only two authors, me and my boss
For the
The 8 criteria I met are :
1. has won awards for excellence in the field of Chemical Sciences

To further substantiate this claim, I have enclosed documentation (a letter from the award committee) regarding the reputation the significance of the award and the criteria used to select the recipient.


2. a member of the following prominent professional societies, include letter of recommendations from the associations.

3. My research work has been discussed in trade publications and major media. I have enclosed the press release, even the video clips for the newsreport.

4. 9 more recommendation letter, two from big pharms (outside my working circle), one from National lab,one from Japan famous professor (outside my work circle), two from big professor from the well-known universities, and two from my colleagus, all in a senior positions, another from Singapore university.
.

5. 6 patents and 15 publications and 4 presentations.

6. proof letter from my leading role in the patents

7.Patent licensing and reports on the TV and newspaper.
8. 84 citation of my paper
 
honkman said:
Do you have patents or patent applications ? And how many names are on the patents ? USCIS doesn't like patents too much since they don't tell anything about your international reputation and are not peer-review. You should explain in a more detail how you think you met 8 criteria otherwise it is hard to give any suggestions
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Patents provide a good indication of the impact of the person's work, if, for example, these patents are being licensed by "major" or reputed companies. He could have easily meet a couple of criteria (viz., original contributions, and business contributions) if his attorney does a good job.
 
My patents was licensed to a company. Do not know how good it is. I filed all these petition by myself.

Do you think I need to find out the reputation of the company? Thank you!
 
My patent licensing was not considerred since the licensing documents was submitted after the original petition. how could I address this point in the appeal letter?
 
You have to point out which crteria out of the ten listed you have met. You have to meet at least 3 out of ten. So you have to read the 140 EA requirements more carefully.

You listed 8 doesn't mean you meet 8. By listing 8 you could meet 10 or meet none. I think the RFE just asked for this. You have to point out clearly you meet which. Not just list everything you have, though it looks you could argue that you have met 4 or 5 among the things you listed.

You have to show the justee that you understand the requirements and tell him/her you meet at least 3. Besides, you could show the other things that may give you credentials but may not come to the level of meeting the criteria. For example, by claiming the award, the award has to be national or international. If your award is national or international, you can claim it. Otherwise, don't claim it, but just list it as your credential.

I strongly suggest you to read the 140 EA instructions more carefully. Maybe you need to consult or hire a lawyer though normally I strongly oppose to hire a lawyer.


chiron said:
yes, I do have patents and patent applications. In my patents, there are only two authors, me and my boss
For the
The 8 criteria I met are :
1. has won awards for excellence in the field of Chemical Sciences

To further substantiate this claim, I have enclosed documentation (a letter from the award committee) regarding the reputation the significance of the award and the criteria used to select the recipient.


2. a member of the following prominent professional societies, include letter of recommendations from the associations.

3. My research work has been discussed in trade publications and major media. I have enclosed the press release, even the video clips for the newsreport.

4. 9 more recommendation letter, two from big pharms (outside my working circle), one from National lab,one from Japan famous professor (outside my work circle), two from big professor from the well-known universities, and two from my colleagus, all in a senior positions, another from Singapore university.
.

5. 6 patents and 15 publications and 4 presentations.

6. proof letter from my leading role in the patents

7.Patent licensing and reports on the TV and newspaper.
8. 84 citation of my paper
Click to expand...
 
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Thank you Lao-Yi so much for the kind response! My question is in the appeal letter, how can I address the patent licensing which is not considerred in the RFE since it was licensed after original petition?
I had a terrible experience with the lawyer, he took the money but no work at all. Waste me two year time until I found that his license is cancelled.
 
chiron said:
yes, I do have patents and patent applications. In my patents, there are only two authors, me and my boss
For the
The 8 criteria I met are :
1. has won awards for excellence in the field of Chemical Sciences

To further substantiate this claim, I have enclosed documentation (a letter from the award committee) regarding the reputation the significance of the award and the criteria used to select the recipient.


2. a member of the following prominent professional societies, include letter of recommendations from the associations.

3. My research work has been discussed in trade publications and major media. I have enclosed the press release, even the video clips for the newsreport.

4. 9 more recommendation letter, two from big pharms (outside my working circle), one from National lab,one from Japan famous professor (outside my work circle), two from big professor from the well-known universities, and two from my colleagus, all in a senior positions, another from Singapore university.
.

5. 6 patents and 15 publications and 4 presentations.

6. proof letter from my leading role in the patents

7.Patent licensing and reports on the TV and newspaper.
8. 84 citation of my paper
Click to expand...


1) Was this award a national/international award open to every scientist in your field. And do you have also papers from scientists (not members of the award committee) about the significance of the award ?

2) Do you pay any fees for the associations and what were the selection criteria for these organizations.

3) More important, how much is your research discussed in scientific journals from other scientists. Major media is neice but doesn't automatically prove that you are one of the top 2% in your scientific field. Major media tends to hype a lot of things which are not top of the class.

4) Sounds good as long all of these letters have the important key words for EA (eg. top 2% etc. etc.)

5) Sounds good

6) Proof from whom ? From people outside of your company ? If this proof is from inside the company it doesn't help too much.

7) Since the licensing was after your petition was send to the USCIS, it doesn't count. USCIS is very strict with that point. Go to the USCIS webpage and you can see the cases which were rejected because people tried to include evidence which appeared after the petition was sent to USCIS

8) I work like you in chemical science and for 15 publications 84 citations are between reasonable and not enough. Does these citation discuss your science in detail ? USCIS distiguishs between citations who just cite your paper and those who discuss your science in detail.
 
Many many thanks to Honkman and all others who have been so willing to help. It seems that the appeal would not be really helpful. I might be able to make a few points, but I am not sure how convincing they could be. Originally, I sent in only two issued patents with my PhD advisor. The licensing and media coverage all came after my original filing date. Since the patent is about novel antibiotics, the media (CBS, ABC news network) did make some hype about it and for a while I thought that was what they were looking for.

One question I have here is about my salary. In my original submission, I had my pay stubs to substantiate that I commanded a high salary. But I did not provide documents to compare my salary with other chemists. I have just found a salary survey from Chemical and Engineering News (April, 2005), which might be helpful. But my salary was only about 16K above the median salary for my level. Would this be useful at all? If not, I am not sure if it is even worth writing an appeal letter and paying another $110.

In the response to RFE, I also submitted the more recent patent documents. One was issued in Dec. 2003 which was before the filing date. Because it is a Russian patent and I was unaware of it at the time when I filed the application, I sent it in as additional evidence. But because of the way I grouped the documents in the response to RFE, my impression is that the adjudicator just skipped all this information based on the priority date. May I use it to make a point as well? By the way, are patents trade publications?

Again, I appreicate all your help. I will come back for more answers as I proceed with the appeal.
 
chiron said:
Many many thanks to Honkman and all others who have been so willing to help. It seems that the appeal would not be really helpful. I might be able to make a few points, but I am not sure how convincing they could be. Originally, I sent in only two issued patents with my PhD advisor. The licensing and media coverage all came after my original filing date. Since the patent is about novel antibiotics, the media (CBS, ABC news network) did make some hype about it and for a while I thought that was what they were looking for.

One question I have here is about my salary. In my original submission, I had my pay stubs to substantiate that I commanded a high salary. But I did not provide documents to compare my salary with other chemists. I have just found a salary survey from Chemical and Engineering News (April, 2005), which might be helpful. But my salary was only about 16K above the median salary for my level. Would this be useful at all? If not, I am not sure if it is even worth writing an appeal letter and paying another $110.

In the response to RFE, I also submitted the more recent patent documents. One was issued in Dec. 2003 which was before the filing date. Because it is a Russian patent and I was unaware of it at the time when I filed the application, I sent it in as additional evidence. But because of the way I grouped the documents in the response to RFE, my impression is that the adjudicator just skipped all this information based on the priority date. May I use it to make a point as well? By the way, are patents trade publications?

Again, I appreicate all your help. I will come back for more answers as I proceed with the appeal.
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The CE&N survey isn't something you can use since it is based on some chemists who voluntarily send back the survey. The USCIS looks very much where you get your data from and if these are official data (which is not the case with CE&N). And if you are just $16K above median salary in CE&N I wouldn't even start to discuss this in an possible appeal. High salary is much higher than that.
If the patent was issued before the submission data I think you could use it for your appeal. But it seems for me that you way too much look on your patents. Patents (even some which are licensed and had some media hype) won't help you too much with EA. USCIS looks very much on publications as peer-reviewed papers in journals with very high reputation (impact factor) and great international circulation. All these points can't be proven with a patent. You have to understand that the USCIS wants to see that you are an international recognized top scientist in your field, and I don;t see how you will prove that with some patents, since there is no criteria for writing a patent. In theory everybody can write a patent independent of your qualification and don't expect that the USCIS is too much impressed by mass media hype. If you base your appeal on just a few additional patents I don't think you will have great chances for your appeal. You have to base your petition on your papers in journals, citations of these papers and excellent reference letters from high ranking scientist who base their opinion on your research and your papers (not patents, since patents don't disclose all relevant informations). Everything else is also good and important but it is more or less the icing on the cake.
Since you work for a company I also don;t understand why don't you try to go for OR instead of doing an appeal. And I also think you should spend some money and have at least a long talk with a good lawyer about the criteria for OR/EA. That your a good scientist doesn't mean that you know what the USCIS wants to hear.
 
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chiron said:
Thank you Lao-Yi so much for the kind response! My question is in the appeal letter, how can I address the patent licensing which is not considerred in the RFE since it was licensed after original petition?
I had a terrible experience with the lawyer, he took the money but no work at all. Waste me two year time until I found that his license is cancelled.
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If you look for a lawyer it is the mist important thing that you take one where you got recommendations from people you know and trust. In addition you always should ask AILA if the lawyer has any kind of issues if you ick one without recommendations. I know it was tough for you to lose two years but you could have avoided this problems very easily and with hardly any work.
 
I have no advice, but I send you my sympathies

Dear Chiron:

I can't help you much because I don't understand the details of your case.

When I applied as EB1, I had to do a RFE because apparently I wasn't proving that I had done anything worthwhile to qualify me as EB1. I sent in some documentation--about paper presentations and seminars I have attended and a VARIETY of things related to my field. Maybe instead of focusing on just patents, you can also show all the other things that you that was scholarly?

But at this point, if the application has been rejected, I don't know if that is something to do now.

All I can say definitely is that I feel your panic, pain, and frustration--and I empathize and sympathize with you. For whatever that is worth. (This is maybe even more worthless advice: but unless you are settled here for sure, maybe look into Canadian immigration?--the headaches seem to be much less--a friend of mine, a professor, got permanent residency in a year and citizenship pretty soon afterwards. If you have been scammed by a lawyer here already and you cannot appeal your EAD rejection, maybe you should go somewhere where skilled workers are wanted--like Canada). Just a thought.
 
chiron,
I got my NIW denied, filed appeal (through a lawyer) and appeal got approved, after that I filed I-485. Details are in my former posts.
I would recommend you still to file appeal, your case sounds strong, probably you could do through a lawyer. Did you review manuscripts for a journal? In an appeal, you could give more evidence for before initial submission, and also add additional evidence which happened after, should not harm.
i think MTR is for I-485, and appeal is for I-140. Did you file concurently?
Are you on EAD or H-1B currently? Please make sure you are in status, if you changed from H-1 to EAD, you may need to re-submit your H-1...
 
I definintely agree with honkman. Mear patents won't give you approval for EA. Patents at most can qualify you Original work. This is just one criterium. You need to show at least two more. As I said in my post many times, you need to read the I140 instructions more carefully. I think the instruction of I140 is very clear to what you need to shown in your petition.

In your petition, you have to provide 3 criteria that you definitely meet, and list other achivements as supporting points. If your salary in only 16k higher than average, how could you claim you command high salary?

If I were you, I would do it again instead of appealing. I belive you are qualified as I have seen many people weaker than you got approved. But I don't think your case is extremely strong so you really need to write a good petition letter. Remember, don't claim those that you are not sure you meet. You are a judge on yourself when you write the petition letter. Say everything based on fact in your letter and let the good words come from your reference letters.

Any way, don't panic don't disappointed. You will get GC eventually but still life will be the same after you get GC.
 
Thank you all for the kind help and very useful advice! I felt I was so not lucky at all. Appeal only have one month time and I only have 23 days left now. I am not very confident if I can get new recommendation letter on time. Do you think I need to provide new recommendation letters from the same person?
 
You have got some good advisors to advise you on this forum. These people helped me when I had trouble with my application 6 months ago. Please check out following links to find out how I turned my failure into a success story. In one of the links I outlined how I prepared my RFE. This is why I listed two links for the same story. I would suggest you to file another new petition yourself. EB1-EA cases get processed a lot faster now. Appeal takes very long time to be adjudicated and it takes even more effort for you to prepare a good appeal case to win. It sounds like you still do not have a good understanding of how EA case works, what CIS is looking for and what are the basic requirements for it. You should really spend some time to read the immigration law and AAO decisions on appeal cases. I am at work now. I can not write too much. We can discuss more later. Good luck.

http://www.immigrationportal.com/showthread.php?t=144163&highlight=alien_simba

http://www.immigrationportal.com/showthread.php?t=148088&highlight=alien_simba
 
chiron said:
Thank you all for the kind help and very useful advice! I felt I was so not lucky at all. Appeal only have one month time and I only have 23 days left now. I am not very confident if I can get new recommendation letter on time. Do you think I need to provide new recommendation letters from the same person?
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If you really want to go for the appeal than I would use recommenadation letters from new scientists and write the draft in a way that you can use it also for a new petition.
 
Thanks to all of you for the encouragement and advice. Every bit helps and your kind words give me a lot of comfort. Yes, life still goes on and I just can not always lament on my misfortune or bad luck for the rest of my life. I am sure I will feel much better after the weekend.

What I have planned to do is to spend some time writing an appeal letter according to the best of my capacity. What they will decide is not up to me. My employer is working on OR for me and I am just trying to push the lawyer to file the case as soon as possible.

Again, I really appreciate all your advice and kind words.
 
And you should also go on http://uscis.gov/graphics/lawsregs/admindec3/
This is the official USCIS page with some denied cases and the explanantion why it happened. Read the EA, OR and NIW cases to get a better understanding what the guys at USCIS want. They are not unreasonable monsters, they are also only looking on their list of criteria and on try to compare your petition with this list.
And I know I repeat myself, you should really consider sending a new petition instead of appealing.
 
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