Help! I140 is rejected

W

wakko

Registered Users (C)
Hi everyone,

I just got notice from my lawyer that my I140 NIW case is rejected. :( Right now I am really frustrated. My lawyer kept telling me that my background is very strong and there should be no problem. Now my case is rejected!!!

Here I descibe myself a little bit. If you have any suggestion about what I should do now, please please tell me.

1) I got my PHD from a OK university. (rank around 30 - 50, I think)
2) Now I am in top university as PostDoc
3) I published 8 good papers. I am the first author in most of them.
4) I submitted 7 referrence letter.

The lawyer still tells me that he think INS make a mistake. He will appealing it. But I do not have much confident in him. Should I change a lawyer? What could go wrong here? Any help is appreciated.

Best Regards
 
NIW is about about you as much and in the petition one has to show that

1. The petitioners work has intrinsic merit because.....
2. The petitioners work is national in scope because.....
3. The national interest would be adversely affected by the need for labor certification
 
wakko said:
. ...( Right now I am really frustrated. My lawyer kept telling me that my background is very strong and there should be no problem. Now my case is rejected!!!
Click to expand...
Lawyer's main aim was to get his fee, if he had told you that your case is not strong then you would have not hired him. As a matter of fact in NIW and EB1 cases lawyers are of no use. Who can know you better than you own?

wakko said:
.
The lawyer still tells me that he think INS make a mistake. He will appealing it. But I do not have much confident in him. Should I change a lawyer? What could go wrong here? Any help is appreciated.
Click to expand...
In NIW cases doing Appeal is probably the worst option. It takes years and then 99% cases get rejected by AAO.

I would suggest start afresh. If your university is willing to sponsor, you may also try for EB1-OR this time.
 
The lawyer does not tell me anything about REF. So I supposed that INS rejected my case without even asking for a REF. :( :( :(
 
more info

I listed more information about my case.

1) INS does not ask for any REF before rejecting my case.
2) The rejection letter mentioned that
* can not prove that my research is in national scope
* can not prove that my research benefits the US
* most my recommendation letters comes from the people who know me.
* does not mention how my publishion be cited.

In my case, I provides the following information.

* my publishion has been reported by Chemical and Engineer News
* my publishion has been regarded as one of the greated chemistry discoveries in 2001 in a germen magazine
* one of my recommendation letter comes from a Member of U.S. National Academy of Sciences
* I got a national award

Any idea? Please help me.

Best Regards,
lingling
 
Looks like your qualification is strong enough for NIW. Your lawyer was right. When he filed the case for you, most people with your kind of qualification probably got approved. So I don't think your lawyer is to blame. The guy that saw your case might have a bad-hair day. I would say, go ahead with the appeal (nothing to lose hear), and file three brand new applications (EB1-EA, EB1-OR and EB2-NIW) to increase the chance.
 
> 1) INS does not ask for any REF before rejecting my case.

Interesting, most people seem to get an RFE before their NIW is rejected. As you can't assert a mistake in the application of law and as their criticisms of your petition seem pretty strong, I don't think you will gain anything by appealing the denial (unless you get a perverse kick out of making the $300/hr goverment attorneys work for your $110 filing fee to come up with a more detailed rejection.)

> 2) The rejection letter mentioned that
> * can not prove that my research is in national scope

Did your petition specifically address this question ?

> * can not prove that my research benefits the US

Was most of your research done abroad ? Did your petition address the question as to how the US will benefit ?

> * most my recommendation letters comes from the people who know me.

I am not too confident about the abilities of your attorney. This seems to be a frequent denial reason for EA and NIW petitions. You have to have a number of people in there who have never worked with you but are familiar with your area of research. They also have to state the fact that they never worked with you and how they come to know about your work (e.g. your biggest competitor in your field of research).

> * does not mention how my publishion be cited.

Again, what was your lawyer thinking ? In any of the 'premium' categories it is very important to ride the point home that your work was cited and that the people who cited you are working in the field (and are not your own co-workers)

> * my publishion has been reported by Chemical and Engineer News

Is this a peer-reviewed publication with a nationwide/international distribution. Did you provide any evidence in your supporting docs, such as a tear-out of the impressum or a printout of their advertiser prospectus ?

> * my publishion has been regarded as one of the greated
> chemistry discoveries in 2001 in a germen magazine

Congrats, but apparently that message didn't get through to the goverment.

> * one of my recommendation letter comes from a Member of
> U.S. National Academy of Sciences

Was he one of your co-workers/lab director/PI ?

> * I got a national award

In the US ?



btw. How much is your lawyer charging to appeal the I140 ? You have to know that the chances of a NIW appeal to succeed are not very good. You might indeed be better off to get a different lawyer to apply for EA or OR (if your university goes along).
Any good lawyer will honestly tell you that your chances at suceeding in NIW/EA are 50/50 at best (in general, not to be understood as an assessment of you particular case).

There are lawyers who will tell you that 100% of their NIW cases have been approved. But they will only accept the most water-tight cases (senior researchers with support from goverment agencies or goverment related grant work)
 
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I think your lawyer screw up your case. You at least derserve a RFE even without recommendation letters. Did you really see the petition letter and the suporting materials sent to USCIS?
 
eaglejoeli said:
Looks like your qualification is strong enough for NIW. Your lawyer was right. When he filed the case for you, most people with your kind of qualification probably got approved. So I don't think your lawyer is to blame. The guy that saw your case might have a bad-hair day. I would say, go ahead with the appeal (nothing to lose hear), and file three brand new applications (EB1-EA, EB1-OR and EB2-NIW) to increase the chance.
Click to expand...

Can he file the new petition in the same category while in the process of appeal?
 
Hadron,

C&E News is a trade publication. It's not peer reviewed. Once a week they publish science concentrates - one page summarizing 4-5 recent papers, and 1 profile - that one is longer and does not necessarily focus on one research group. Both types are often solicited by the authors. So it makes a great piece of evidence for OPR if one's name is mentioned, but doesn't do much otherwise.
 
In think name being mentioned in C&CE is helpful if you apply for EB1 EA. Because that's published material abouth the petitioner
 
> In think name being mentioned in C&CE is helpful if you apply
> for EB1 EA. Because that's published material abouth the petitioner

If it is not a peer reviewed scientific publication, it doesn't count towards the 'has published' criterion.

If indeed, some of the material is solicited by the author, this publication is essentially useless towards an EA case.
 
more detailed info

I did got my name shown in the text of science concentrate part in C&EN News. It stated " Chemistry professor someone and graduate student someone made blah blah blah". The discovery was included in the annual reports of geman magazine (Nachrichten aus de Chemie).

My lawyer think it's a hard evidence for the impact and inflence of the research. But apparantly, the USCIS officer doesn't think so.

This is a paragraph from the denial notice: "When judging the influence and impact that the beneficiary's work has had, the very act of publication is not as reliable a gauge as is the citation history of the published works. Publication alone may serve as evidence of originality, but it is difficult to conclude that a published is important or influential if there is little evidence that other researchers have relied upon the beneficiary's finding. Frequent citation by independent researchers, on the other hand, would demonstrate more widespread interest in, and reliance on, the beneficiary's work The record contains insufficient evidence that others have cited the beneficiary's work to a degree that would be indicative of his claimed accomplishment in the field."

BTW, my lawyer hasn't included the citation hastory in my application package, he may think he can prove the impact without it. USCIS didn't ask the citation history before denial :mad:
 
> USCIS didn't ask the citation history before denial

Well, they don't have to.

The section in the INA that deals with NIW is like three lines long. There is no printed rule-set on the things you have to bring. There are AAO decisions and court decisions like NYS-DOT vs Reno that govern all of this. A good lawyer has all these decisions available to him and knows how to circumvent the typical 'rubber stamp' denial arguments. If you claim that you had an impact on your field, it is your obligation to proove that.
 
> 2) The rejection letter mentioned that
> * can not prove that my research is in national scope

Did your petition specifically address this question ?

My Answer:
Yes, the petition my lawyer prepared specifically address that. 1) My paper is mentioned in C&EN (a magazine) and 2) a German magazine ranks my discovery one of tops in that year 3) my work is funded by National Institute of Health. 4) My work is included in a chapter of a chemistry textbook.

Do you think it is enough? What else do you think I should put it in?

> * Can not prove that my research benefits the US

Was most of your research done abroad? Did your petition address the question as to how the US will benefit?

My Answer: It was totally done in US. Yes, my petition declared that it was related to the hydrogen based energy technology, which is good to environment, economy, etc.

Do you think it is enough? What else should I say to prove this point?

> * does not mention how my publication be cited.

Again, what was your lawyer thinking ? In any of the 'premium' categories it is very important to ride the point home that your work was cited and that the people who cited you are working in the field (and are not your own co-workers)

My answer: My lawyer thought that since my work is cited by all these good magazines, so it proves that how popular my work is. But obviously he is wrong.

> * my publication has been reported by Chemical and Engineer News

Is this a peer-reviewed publication with a nationwide/international distribution. Did you provide any evidence in your supporting docs, such as a tear-out of the impressum or a printout of their advertiser prospectus ?

Answer: I provided the printed official copy. Is this enough?

> * my publication has been regarded as one of the greatest
> chemistry discoveries in 2001 in a Germen magazine

Congrats, but apparently that message didn't get through to the government.

Answer: I mentioned this in the cover letter. And also attached the document in the petition.

What else should I do?

> * one of my recommendation letter comes from a Member of
> U.S. National Academy of Sciences

Was he one of your co-workers/lab director/PI ?
Answer: He is my boss.

> * I got a national award

In the US ?
Answer: Sorry. My wife posted this message for me. I did not get a national award, but a president award in my university here.


btw. How much is your lawyer charging to appeal the I140 ? You have to know that the chances of a NIW appeal to succeed are not very good. You might indeed be better off to get a different lawyer to apply for EA or OR (if your university goes along).
Any good lawyer will honestly tell you that your chances at suceeding in NIW/EA are 50/50 at best (in general, not to be understood as an assessment of you particular case).

There are lawyers who will tell you that 100% of their NIW cases have been approved. But they will only accept the most water-tight cases (senior researchers with support from government agencies or government related grant work)

Answer: Right now, I am totally confused. What qualification are NIW looking for? Right now, I suspect my lawyer did not organize my material well before sending out.

I am thinking to reapply for NIW again. But I do not know whether this rejection will affect that, too.

I will add more recommendation letters, add the CVs of the recommender add the citation number for my papers.
 
Ok, I am not an expert on this, but I think just resubmitting your NIW petition with some additional stuff added is unlikely to succeed.


> 1) My paper is mentioned in C&EN (a magazine)

Doesn't document that it has an impact on the US as a whole.

> and 2) a German magazine ranks my discovery one of tops in that year

You might be able to use that mention in the 'material regarding the petitioner was published in a trade publication' category of an EA petition.

> 3) my work is funded by National Institute of Health.

Are you on the grant, or are you employed through money out of this grant ? Anyway, it helps to establish the national scope and intrinsic merit of your work.

> 4) My work is included in a chapter of a chemistry textbook.

Are you a co-author of that chapter ?

> My answer: My lawyer thought that since my work is cited by all
> these good magazines, so it proves that how popular my work is.
> But obviously he is wrong.

OK, either I am confused or your lawyer.
Did you have papers in peer-reviewed publications ?
If yes, did other researchers cite your papers in their work ?
( I am not talking about a mention in a trade publication, did someone actually write 'wakko et.al. journal of hydrogen technology 1999 pp12-13))

> Answer: I provided the printed official copy. Is this enough?

Apparently they now care about the distribution of the journal.

> What else should I do?

Get a different lawyer. One that will by honest with you.

> Was he one of your co-workers/lab director/PI ?
> Answer: He is my boss.

This limits the usefullness of the letter to pretty much nil.

> I am totally confused. What qualification are NIW looking for?

They don't care so much about your qualifications (that's what EA is for). They care more about whether your work has
- intrinsic merit (meaning you are not doing it for your own entertainment)
- is national in scope
- the national interest would be adversely affected if the employer had to go through labor certification.

Everything else is fluff. If you can't sucessfully address these three points, even a Nobel won't get your NIW approved.

> I am thinking to reapply for NIW again. But I do not know whether
> this rejection will affect that, too.

The rejection will affect it. If you can't provide anything substantially different from your first petition they will just pull the old rejection letter and put a new stamp on the letter.

> I will add more recommendation letters, add the CVs of the
> recommender add the citation number for my papers.

1. Get a new lawyer
2. Get a new lawyer
3. Get an employer who can file a LC for you
4. You might be better off filing an EA or OR petition.
 
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