My EB2-NIW RFE Letter!

This post has been updated in light of new information
Anyway, back to JerIst's latest post: You had written above "But clearly, my application was complete and should have been approved because I am having an advanced degree, I am according to their admission seeking a job with high intrinsic merit, and they agree that the evidence I submitted shows that the scope is national"

Yes, you should have been approved and I'm sure you will be. In your RFE, I see two parts. The first is the part that you need to pay a lot more attention to:

Please submit any available additional documentary evidence that, as of the petition priority date, you had a degree of influence on your field that distinguishes you from other scientists with comparable academic/professional qualifications. The evidence may include, for example, copies of additional published articles that cite or otherwise recognize your research achievments. Similarly, evidence of official recognition conferred on you by governmental entities or professional organizations may also be submitted.

This paragraph above deals exclusively with the third prong of the NIW conditions - that you demonstrate that waiving the labor certification for you will benefit the national interest more than imposing it will. Do not confuse this with the requirements for 'exceptional ability' which is a separate matter (see below). The adjudicator is apparently not satisfied (or did not carefully read your petition well enough to see) that you have demonstrated your compliance with this third prong. Here is where your plan to provide additional letters, citations, etc will be paramount. In this paragraph alone, the RFE makes sense. Remember, even if you hold an advanced degree, you must still fulfill all three prongs of the NIW: national scope, intrinsic merit, and outweighing the benefit to the national interest of requesting a labor certification. As you said, they acknowledge that you satisfy the first two, but the last one of these is the most difficult, and the evidence being requested in the paragraph above deals with this third prong. Again, this is separate from the requirements of "exceptional ability".

However:
The second half of your RFE is, as we have come to conclude, is confusing:

If applicable, please submit evidence in the form of letters from current or former emploers showing that you have at least ten years of full-time employment experience in your field of endeavor.

Please submit evidence of your annual salary, or remunerations for your services in your field as evidence of your exceptional ability.

Please submit evidence of your memberships in professionals associations.

Please submit additional avidence of your personal recognition for achievements and significant contributions to your field by peers, governmental entities, or professional organizations.


These are requirements to demonstrate exceptional ability for those who want to apply for EB-2 (regardless of whether under NIW or LC) but do not have an advanced degree, and this second half has nothing to do with the NIW per se. You obviously do have an advanced degree, and these conditions to prove exceptional ability at first glance should not apply to you. However: it appears that many lawyers are now of the experience that a successful NIW petition must demonstrate 'exceptional ability' as much as possible, and it is not sufficient to just satisfy the three prongs of NIW (the last being the hardest and longest) and show your advanced degree alongside them.

Rather, a good petition apparently must merge the three prongs of NIW (national scope, intrinsic merit, and evidence that you would benefit the nation more than a similarly-qualified US citizen peer would to justify waiving the labor certification requirement as in the national interest rather than imposing it) with evidence to show 'exceptional ability' under EB-2 as much as possible. Different lawyers have different methods of achieving this, and similarly, different adjudicators each have their own criteria for evaluating this whole package.

My guess is that you already know all of this by now :)
 
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jk0274
Your ultimate conclusion that JerIst's RFE requirements to demonstrate exceptional ability for those who want to apply for EB-2 (regardless of whether under NIW or LC) but do not have an advanced degree, might be a smart conclusion if we looked at this case (see link below and read text of his RFE). Here, the applicant informed us of his status: The application is for an "alien of exceptional ability", seeking a NIW where he does not have an advanced degree
http://www.trackitt.com/discuss/140/53291509/
 
Interesting... I wonder if it's the same adjudicator in both cases... The RFE makes sense in the other person's case, but not in JerIst's case, where the second half of the RFE is not applicable since JerIst has an advanced degree....

Amazing though how NSC responded to the other person's application so quickly... wow...
 
Hi gurus,
Sorry.
I am not hijacking your thread.
but would like to know how to address the accomplishments in the cover letter.

for self petition of NIW

Should I write
I, me, myself (like my field, I did this etc)
or
go by name (Dr. xxx field, Dr. XXX had shown that etc.)
 
since you're writing your own cover letter for a self petition, then I recommend you use the pronoun "I"
 
jk0274,

I was discussing with my lawyer my RFE, and he said that there is no need at all to gather any letter from my employers to prove that I have 10 years of full-time experience, something I do not have. The lawyer said that there are other ways to prove your exceptional ability. He said that recognitions, acheivments, and your advanced degree, among other thnigs, can be a mean to prove your exceptional ability etc...

I am reading this here:

http://www.jackson-hertogs.com/ref/niw.htm

Although Congress confirmed that aliens with advanced degrees may also be considered in a National Interest Waiver situation, the case law in this area appears to indicate that the advanced degree in and of itself is no longer sufficient. The beneficiary must not only have the advanced degree, but possess abilities that are beyond his/her peers. While the advanced degree showing appears to be less than the "exceptional ability" standard and is continuing to be defined, it is advisable to qualify a national interest waiver immigrant visa botpetition under h advance degree and exceptional ability.

So clearly my lawyer, and now I assume your lawyer too, are trying to do the same thing...

Quite confusing...
 
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Wow - thanks JerIst. That changes my perspective completely. So basically they recommend that the petition show that one has exceptional ability along with showing a degree. What it boils down to, it seems, is that a successful petition must be the result of a well-written (well-presented) petition suiting the mood of the particular adjudicator and his/her own interpretation of the law... basically, given the complexity of NIW, there's a lot of luck involved... the petition must happen to 'click' with the adjudicator who happens to read it....
 
Make this post sticky

I liked this thread and believe that it would be informational to our present and future applicants. Thank you
 
I am glad destinychild that you liked the info here... I hope that by the end, we get results out of this and have our cases happily approved :)
 
I am fed up with NSC

Guys, I have a bad memory so please just someone remind me again or maybe I am stupid and don’t deserve to get a GC, just someone tell me why the NSC is still keeping EB2-NIW applications of October 2006 (let alone the forgotten petitions from Jun-September 2006) on the dusty shelves while their corresponding Immigration Officers at Texas Service Center adjudicate now applications of May 2007 (they even approved cases of July2007) ???????????????????????????????????????????????????
Please I am outraged. I am wasting a lot of time as most of you, on these sympathetic tracking forums. I need to turn back to my other stuff and business but no motivation. One member somewhere on trackitt.com suggested complaining against NSC but non of us supported him/her!! Some volunteered to write to AILA asking them if they know why NSC is behind TSC and why this difference in processing time frames between the two centers? But nothing was done. Is waiting and waiting and waiting the only thing we can do here?????????
 
I think those people at NSC just lie when you call them and they give untruthful statement when they tell you "we will look at your case after such amount of time". or "enquire about (?)". My RD is March 2007. I don't think this April 6, 2007 timeframe is real as no cases on trackitt.com from late October 2007, the in-line due cases, (let alone the forgotten cases of Jun 2006 and after..) until that posted on-line date of April 2007, no case was approved. So, I called them two weeks ago when I saw the April 6th processing time frame and they told me they most probably will open my case after a week, which is this week but nothing happened so far. When I called I opened SR. I will wait until Saturday and call them back again. I don't think this is fair. We need to do something.
 
Guys,
I opened a SR on my I-140 on 1/2/2008 and also asked NSC to change address on my wife's I-485 but they send reply to SR on my wife’s letter of change of address confirmation (the C.S. lady confused SR) but not on my I-140. They wrote under “The Status of This Service Request is”..:“The processing of your case has been delayed. A check of our records establishes that your case is not yet ready for decision, as the required investigation into your background remains open….. Until the background investigation is completed, we cannot move forward on your case… If you do not receive a decision or other notice of action from us within 6 months of this letter, please contact us ….”


Do they mean by “the required investigation into your background remains open” that they have opened my I-140 and concurrently opened the two I-485 of both of us? OR they only opened 485 of my wife before my I-140? Do they usually open 485 before 140 for background check???
 
Keep in mind that sometimes they have status updates on "Change of Address confirmations" that is coincidental and may have nothing to do with your SR. We had a number of change of address confirmation letters last summer (for each of our pending I-485, 765, 131, etc) and some of them, but not all, did have some extra case status information such as "this case is still pending bla bla bla since you are a derivative applicant your case cannot be approved before the primary applicant bla bla bla". It may be that your letter just is one of those that has case updates on it and not related to your SR, which will come in a separate letter.

It also seems that your wife's namecheck is still pending, from what I can tell.....

According to what I know, they open namechecks for every I-485 as soon as they receive them (or soon after). If they waited to start processing I-485 until after I-140 is approved, you wouldn't have gotten your fingerprints taken yet....
 
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According to what I know, they open namechecks for every I-485 as soon as they receive them (or soon after). If they waited to start processing I-485 until after I-140 is approved, you wouldn't have gotten your fingerprints taken yet....

Thank you jk0274,
I think this makes sense. By the way, I did the two EADs myself this time and mailed them to NSC. I got receipt no. for my wife's yesterday and waiting to get mine soon. Thank you for encouraging me do it myself. This saved me some money. I hope they will approve them smoothly. But do you think if by the time they started processing them they found out that our GC is almost approved, hopefully, then will they reject them and refund money considering the fact that they became unneeded?
 
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I have seen a number of cases where the EAD is denied because the Green Card has just been approved, but unfortunately, the money isn't refunded...

I'm glad you did it yourself. It's easier than filling out a driver's license application, and you don't even have to take a driving test. Lawyers scare you into paying them to do it, so that they can make a lot of money for 12 minutes of work.
 
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