EB1-EA denial/advice

M

Millan714

Registered Users (C)
I received a denial letter a few days ago. Looking for advice for next step.

The initial petition presented,
- Sr. researcher with 15 years working experience; currently $100K+ salary
- co-authors of 8 issued US patents; first author of 4 of the 8 patents
- PI (principal investigator) of several projects, including a government grant
- served a NIH grant review panel as a grant reviewer; referee of manuscripts for journal publication
- some publications
- but neither recommendation letter nor objective reference was included (It seem to be a critical mistake. If I knew this forum site before, I should have been aware of the importance of the letters.)

I had expected RFE, but unexpectedly, I received a straight denial! All categories I claimed were challenged. Director’s comments repeated ‘the level expected within the highly restrictive definition of extraordinary ability’, although the director acknowledged that ‘the petitioner is talented, highly skilled and successful’ and ‘ the petitioner’s work is very impressive and his contributions to the various projects were consistently excellent.’

I am thinking about appealing AAO and re-submission. Questions are,

(1) As for appealing to AAO. As I know, new or additional information, such as recommendation letter or objective documents, is not considered by AAO. If so, AAO’s consideration will be limited to the materials in the initial petition. Is any favorable result expected? What is my gain from AAO appealing?
(2) As for re-submission of EB1-EA or OR. What negative impact is this denial? I can include recommendation letters from my co-workers outside my company, but I want to proceed without assistance from the people in the company I am working now. What’s my best strategy in the re-submission? Any advice is appreciated and will be helpful for my communicating with lawyer.
 
EB1-OR should be straightforward for you. It appears your attorney did not do a good job. While reco letters are not always necessary, for someone who has not received a major award, reco letters are quite important. Having publications or patents may not mean much unless some expert in your field testifies that those are indicative of extraordinary ability.

How many criteria did your attorney claim that you satisfy? I can see three (major contributions, judge of others, and publications). Try to add more. Any citations? Any useful memberships?
 
Thanks, Raj1994

I thought that patents associated with my research achievement are objective and self-supporting, but it turns out, as you pointed, that patents without expert's testimony, which I missed, may not be meaningful.

Other claims are,
award: claimed NIH grant as a award, but it was considered as a future research rather than recognized prior achievements.

membership: membership in grant PI group, who are often invited to judge other's grant applications. But, they said that it did not fit the desciption envisioned by the regulatory criterion. I thought that PI is a leader of the proposed research, which is different from co-worker or participant, but I may be wrong.

high salary: they asked a meaningful comparison with others in the field. What's criteria? 2 or 3 times of other's salary?

Does OR require INTERNATIONAL recoginition or reputation? I may have difficulty to prove that with documents.

Please give me advice.
 
Millan714 said:
(1) As for appealing to AAO. As I know, new or additional information, such as recommendation letter or objective documents, is not considered by AAO. If so, AAO’s consideration will be limited to the materials in the initial petition. Is any favorable result expected? What is my gain from AAO appealing?
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They do consider, but the things talked in the recom better to be those which occurred before your original filing.

OR or NIW is more appropriate for you. Many lawyers say a denial won't affect latter filing, but not sure if this is true.
 
I think you should file a freash new petition youself or get your employer to file an EB1-OR for you. Appeal the case will cost too long time and the rate of success is very low. It seems to me that you still do not have a good understanding what EB1 requres. I would strongly suggest you to study immigration law and AAO decisions on EB1-EA cases on USCIS webpage youself. You should especially pay attention to those cases that director's initial decision got overruled. You can also read my story at following link to see how I sucessfully turned a failure case to success.

http://www.immigrationportal.com/showthread.php?t=148088&highlight=alien_simba
 
EB1-OR is filed by an employer and the employee needs to be offered a permanent job (intended to be permanent). EB1-OR does require "international" recognition, but you only need to be considered "outstanding" which is a much lower standard than "extraordinary".
 
I think OR should be a cakewalk for you. International recognition is required, and the besy way to do this is to contact people who have cited your work, or friends of your colleagues. Either should be sympathetic to your cause. You should also get letters from a broad geographical region in the US. I had two letters from Canada, 1 from Germany and 1 from England for a successful OR petition.

EB1-EA should NOT be a problem beased on your qualifications. I think the petition was not prepared properly. NIW is much more subjective.

For any of these categories, letters are the key. If your lawyer did not think so, I might search for another one.

A google search about any of the above categories will give you tons of info. As suggested by others, I would carefully study the administrative decisions in the USCIS home page.

My advice: if you work for a large stable company with a good balance sheet, get them to do OR for you, then sit back and relax. If you work for a startup or for a company with up and down finances, get them to do OR, and you should independently do EA or NIW, depending on what you feel strongest about. Good luck!
 
Alien_Simba said:
I would strongly suggest you to study immigration law and AAO decisions on EB1-EA cases on USCIS webpage youself. You should especially pay attention to those cases that director's initial decision got overruled.
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Alien_Simba said:
Thanks Simba, Your story is very helpful.

I saw AAO decision cases like listing year 2004, 2003, .. cases before. But, I could not find that in USCIS web this time. If any one knows about section 203(b)(1)(A) AAO decisions case list, give me the address.
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Millan714 said:
Alien_Simba said:
I would strongly suggest you to study immigration law and AAO decisions on EB1-EA cases on USCIS webpage youself. You should especially pay attention to those cases that director's initial decision got overruled.
Click to expand...
Alien_Simba said:
Thanks Simba, Your story is very helpful.

I saw AAO decision cases like listing year 2004, 2003, .. cases before. But, I could not find that in USCIS web this time. If any one knows about section 203(b)(1)(A) AAO decisions case list, give me the address.
Click to expand...

Here is the link.
http://uscis.gov/graphics/lawsregs/admindec3/B2/index.htm
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Millan714 said:
tony403 said:
You should also get letters from a broad geographical region in the US.

Do you know which DIY kit carries good recommendation letter examples, especially for OR?
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My letters were very simple and staightforward. Here is a sample. MAKE SURE THE WRITER PROPERLY DEFINES HIS/HER RELATIONSHIP WITH YOU, OR SAYS THAT THEY ARE FAMILIAR WITH YOUR WORK FROM PUBLICATIONS/CONFERENCES. This was the templates for my successful OR petition.



(WRITER - Please provide copy of c.v.)


Date

USCIS
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001

Dear Sir/Madam:

This letter certifies the Outstanding Researcher status of Dr. XX.
I have not had the honor of working directly with Dr. XX on any of his projects, but I am quite familiar with his work and I consider it to be Outstanding. I am acquainted with Dr. XX through _____________________________________________________________________________.

Dr. XX's exemplary research focuses on YY. This is extraordinary because ______________________________________________________. Additionally, his work includes ______________________________________________________________________ _____________________________________________________________________. His excellent knowledge and experience in the field should be commended.

Dr. __________’s ingenious work involving _________________________________________________ __________________________________________________________ is exemplary because _____________________________________________________________. This outstanding research has shown ___________________________________________________________________________ and is valuable to ________________________ because ______________________________________ ____________________________________. Further, I feel that Dr. _____________ is Outstanding in the field of ______________ due to his breakthrough* in this type of research.

In conclusion, Dr. XX is an ingenious researcher and I wholeheartedly recommend approval of his application for permanent residence based on the Outstanding Researcher category.

Sincerely,



Name
Title
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