I-140 EB1-OR RFE --- Help Plz!

G

guyneedshelp

Registered Users (C)
Hello,

First some background for my case:

I am a Research Associate(a sexier name for postdoc) at a university. Have been working in this position for more than 3 years. 30+ publications by the time I filed the I-140. More than half of them in PRL.

The I-140 was filed in December of 2005 to Vermont center. It was transfered to Nebraska center in May of 2006 and the nightmare starts. It was sitting there for the past 13 months. On 6/29/07, I paid the $1000 PP and on 7/2 got RFE. Here is the full text of the RFE:

The letter from the Department Chair indicates that the beneficiary is employed as a Postdoctoral Research Associate. The academic community itself hold postdoctoral appointments as being training assignments, precursors to full-fledged academic or research careers. White it is not impossible for an individual in such an assignment to have been made an offer of permanent employment, the burden remains on the petitioner to establish the facts about the employment, beginning with the actual job offer. The copy of the job offer you have submitted states that the appointment is contingent upon the continuation of funding in the form of grants. Addtional information is required.

How long has this project been funded? Contingent on funding year-to-year, what is the expected term of this project? Submit evidence demonstrating prior renewals for extended long-term research projects. Are the benefits attached to the beneficiary's position the same as those offered to tenured or tenure track positions? You must submit evidence that this is a permanent research position.


My lawyer said the only letter that bore the Department Chair's name is the original job offer, which only states I am hired as Research Associate(i.e., no P word in it). But I guess nowadays the immigration officers are all fully aware of the nature of this position.

What should I do next? Would a letter from the Department Chair explaining the nature of the project(this is a big group and has been in business forever and will continue to be so, by the way) be sufficient? What counts as 'evidence that this is a permanent research position'?

I did some research on this board, and I got the feeling that this case is more or less doomed... Any remedy to this?

By the way, that was the only thing(s) asked of me in the RFE.

Any advice/comments are highly appreciated.

---guyneedshelp, I mean, he really does.
 
First of all, take heart from the fact that your case notwithstanding, lots and lots of people have gotten OPR EB1 approved, while being on grant-funded positions. Many universities these days have full professors, who HAVE to fund themselves, even after 20-30 years. In return of course, they dont have minimum teaching responsibilities and can do as they please. You could perhaps note this fact and similar facts in your response with some examples.

Personally, I think your lawyer must have whitewashed your documentation sufficiently. "Postdoctoral" is a red herring term for USCIS. You have to erase that branding some how. See if your offer letter or anything filed could be sanitized now.

Provide the required records for your specific project, even in its earlier avatars, as regards funding. Provide records or numbers, for every single collaborator, or person working in the same area, at your university, stating loosely that those funds are all collectively proof of the rich research funding climate for your area. For "year to year" nature, submit a letter from your immediate supervisor stating his research plan and program for the next 10years or so, and how he can never do it without you around. Also document the potential evolution and culmination of your own project and how you are central to it.

To answer for benefits of the position, apart from the pecuniary and grant writing rights etc., state things like if you are allowed to advise students, sit on thesis advising committees, voting rights on administrative and curricular matters within the department and so on i.e. where you are in the pecking order. If none of these exist, simply state that, you are not in the path at all, and stick to elaborating your research duties alone.

Get a very strong letter from your chair saying that although contingent on funding, funding has never been a problem, that this is normal, and that even funds for tenured faculty could be lost (yeah varsities can have job cuts too, in the extreme, including facutly positions, which is decided by your VP of finance or whoever manages your school's endowment; I have personally heard a discussion on impending job cuts including faculty, at an ivy during the recession) This letter should easily bail you out.
 
you lawyer needs some help

The USCIS precisely addresed this issue on this meomrandum last year

http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf

the relevant section is


Memorandum for Regional Directors, et al.
Subject: AFM Update: Chapter 22: Employment-based Petitions (AD03_01).
page 42-43
(C) “Permanent” for Research Positions. Adjudicators should not deny a petition where the employer is seeking an outstanding researcher solely because the actual employment contract or offer of employment does not contain a “good cause for termination” clause. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment. For example, many research positions are funded by grant money received on a yearly basis. Researchers, therefore, are employed pursuant to employment contracts that are valid in one year increments. If the petitioning employer demonstrates, however, the intent to continue to seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research projects) such employment can be considered “permanent” within the meaning of 8 CFR 204.5(i)(2). Adjudicators should also consider the circumstances surrounding the job offer as well as the benefits attached to the position. A position that appears to be limited to a specific term, such as in the example above, can meet the regulatory test if the position normally continues beyond the term (i.e., if the funding grants are normally renewed).



Suggestion

go to CRSIP data base from NIH
NIH Bioskech fro you boss and

get detailed records of the grants for last 5-10 years and say that you usually get renewed
 
Thank you both very much for your comments and suggestions.

I am in the process of gathering material. Hopefully, I can overcome this hurdle.

I am in physics, so I am not sure the NIH database would have our group's grant listed, though.
 
My lawyer sent in the reply to the RFE on 8/9, and my I-140 was approved on 8/10. In the letter signed by my department chair, it specifically says my position is of indefinite duration and is NOT a temporary postdoc assignment. I guess that helped.
 
Good news!
Indeed, the nature of the position, as others wrote earlier in this thread, is really important. A good thing for you that your department chair described your current position as of indefinite nature!
Chris
 
You must log in or register to reply here.
Top