The good news is that the law is in your favour.
1. Have the affidavits in order. clearly mentioning, address of the employer, hours per week worked, employment dates, and job title & duties. Get a format from one of these boards.
2. Have a self affidavit that says why primary evidence can not be obtained. In case, primary evidence is absent, what secondary evidence is presented.
3. Docuemented good faith efforts to show that effort was made to obtain the primary evidence. The regulation clearly states that the onus is on you to show that these efforts were done and that primary evidence is unobtainable.
4. If you are seeking EB3 based on bachelors + 5 years experience. The word "progressive experience" is very important. You must show progressive experience.
5. Also submit, W-2 and paystubs as secondary evidence. This hedges your risk considerably. This doesnt directly establish evidence that work was done in particular profession but supports the fact that you worked for an XYZ employer.
6. Instead of calling your case adjudicator STUPID, gently draw your adjudicator to notice the following law:
8 CFR 103.2 (b)(2). The pertinent section states:
(2) Submitting secondary evidence and affidavits .
(i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.
(ii) Demonstrating that a record is not available . Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where the Service finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.
7. This should help you win approval. You can have a reasonable degree of confidence in replying to such RFE. You should win in the end. The adjudicators sending such RFEs are just plain wrong. It seems that USCIS has hired some stupid contractors who do nto know the law.
8. Last but not the least have your attorney mention following citation while responding to an RFE:
Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7 (D.D.C. 1988).
This can be used to show that courts have approved use of affidavits.
Good luck!
