Need help!!! NIW wasdenied by INS

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happybird

Registered Users (C)
Hi, folks,

My NIW petition was denied recently because of the Matter of New York State Dept. of Transportation. The officer did not agree that national interest would be adversely affected if a labor certification were required. The reasons were described in detail as below.

1). An overall view of the record suggests that the beneficiary has played an important role in the activities directed by Dr. XXX (my boss). However, the evidence presented does not establish that the petitioner is the primary motivator behind projects that Dr. XXX and University XXX are continuing as part of their own mission.

2). ...... However, original contributions, publications and presentation of research work are inherent to the position of a researcher. The fact that the alien was successful in his endeavors is not necessarily sufficient to meet the national interest threshold.

3). A petitioner seeking the waiver must persuasively demonstrate that he will serve the national interest to a substantially greater degree that would an available U.S. worker having the same qualifications.

I would like to appeal, but I have no idea about how to write a letter to argue with the above points. The timing frame for appeal is also very short. I would greatly appreciate if anyone can provide me some ideas or sample letters for appeal. In addition, I hope that the information I posted will help coming people to prepare their cases.

Good luck to all and thank in advance!!!
 
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Here is my experience.
My first OR petition was denied in Feb 2000. I spoke with total four lawyers. All said that this is a very bad decision. My company attorney sent the appeal to CSC by the end of February 2000. CSC forwarded it to AAU. Still pending. While it is pending, I got EA, NIW and OR approvals from CSC.

It seems that this is not just for me. I know many people used to discuss their appeals in the past in this message board, especially in the old message board. As far as I know, nobody has ever reported good news.

I do not think appeal is a good way. I suggest you refile NIW and/or try other category EA, OR even labor cert.

Shintaro
 
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Shintaro,

You mean when your OR was denied, you could refile your OR. My quetion is that we can resubmit another OR (EA, NIW, or others) after the first OR (EA, NIW, or others) was denied. Is it correct? Thanks.
 
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Yes, we can refile the same category after the denial. The only requirement is that we should disclose the information about your previous I-140 (denied or pending) in your new I-140. Actually, the form I-140 requests the information of previous filing. You can find the request on the form.
When refiling, my company attorney disclosed the denial. To overcome the previous denial, he also asked new evidence that we can add to the new petition. Since I had waited for 18 months before the denial, I had a lot to add. (CSC used to be the slowest SC.)

Another problem of my appeal was that HR would not start another OR petition after the appeal, because the attorney fee was exactly same as that of new I-140 filing. It took almost three months to convince HR to start filing OR petition. While the negotiation with HR, I thought that I would have refiled if I had known better.

Shintaro
 
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Shintaro,

What information you added to your new petiton when refiling? I had same situation as HappyBird (denied NIW). I am trying to file OR or LC later on (move to another company to be technical leader). Is there any impact on the following filing due to the previous denial?
Thank a lot!
 
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If you work as a research engineer for 18 months, most likely you have more patents, academic papers, journal articles and citations. These are the information that the regulations requests for EA and OR. I added those documents.

About the previous denial, in my case, I did not think it affected the following filings, because EA and NIW is more difficult than OR. I put my previous denial information on the I-140\'s as requested.
 
About the refiling, Jose Latour suggested this way when I got a second opinion from him. When I explained his advice to the company lawyer, he tried to justify the way he did, appeal. He was not willing to refile. I do not think that the OR denial was not his fault. The officer was very bad. But, the company lawyer chose appeal. And it has been pending since March 2000. I think this was his fault. I got EA approval with Jose\'s help. So, Jose\'s advice lead to two approvals (EA and OR). It is my opinion that the attorney can make a big difference.

Shintaro
 
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Thank you so much for your input! Shintaro.

Could you tell me what is the telephone number and address of Jose Latour?
 
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Thank you very much, Shintaro.

I probably will refile a NIW. Do you know if INS officers are going to compare the new case with the old one? I am just wondering what kind of information will be able to make them to reverse their decisions that have been made before?

thanks again.
 
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I think that pursuing only NIW is probably too risky. As you know, NYSDOT points are very difficult to overcome. In terms of art of preparing the petition, I think NIW is more difficult than EA.
I suggest you consult with a good lawyer. I can recommend Jose. You may need to pursue other way(s) such as EA, OR and/or RIR.
Good luck.
  
Shintaro
 
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Shintaro,
Do you mean it is almost useless to appeal the final denial, or it is not worth even trying to amend the RFE. In another word, is there more chance to be successful in replying RFE than appealing? What\'s your opinin? If you ignore the RFE and start a new NIW or OR etc instead, will this affect your future petition? BTW, I am working on my RFE.Thank you for your input.
 
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It is definitely worthwile to respond RFE. Most people get RFE, and most get approved after responding. You can correct all the mistakes of initial petition and get the decision quickly. As for appeals it seems that the major problem with them is that they are so-o slow, you can get 2-3 consequitive new petitions approved in that time!
Good luck
 
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My attorney, Jose Latour told me that appeal is a waste of time and money. Here is his opinion. He told me the same thing to me when I asked him his advice. You can read a whole story here.
http://www.usvisanews.com/memo888.html
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I have had a lot of attorneys beat me up over the years about their routine filing of appeals on behalf of clients with weak or improperly adjudicated cases. The philosophy of exhausting all options may work in other areas of law, guys, but as far as I am concerned, having a client sit around for two years while charging them for putting together in an appeal is a lousy thing to do. Check out this statistic and tell me I\'m wrong: TO said the AAU approves 3% of all appeals filed. 3%, guys. I\'ll admit once in a while the AAU comes up with some pretty zany decisions-- such as Matter of New York Transportation -- but if you read their decisions on a regular basis as I do, you will agree that for the most part they are intelligent, reasonable, and fair. At least I think they are. Know what that 3% tells me, even though my one AAU denial was, I believe, totally wrong? It tells me that a significant percentage of AAU appeals are filed by lawyers who are doing their client a disservice by either filing a lame appeal or doing a lousy job. Think about it. If the filing of an AAU appeal preserved status while the case was pending, file away, I\'d say. But to pin the hopes of a resolution on a process this excruciatingly slow, with a 3% chance of approval...
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When I heard the low success rate, I thought that may be true, because it was AAU which set the notorious "NYSDOT guide line". So, I decided not to count on my company attorney and decided to hire Jose.
So far, his adivce seems to be correct. I have not heard anything about my appeal for about 13 months.

About RFE, I agree with Ooa. I strongly suggest you respond when you get RFE. Take a look at the messages in this message board reporting EB-1/NIW approvals. Many who eventually got EB-1/NIW approvals in most case got RFE\'s. I think some INS officers just send out RFE\'s without reading the petitions to buy time. I suspect that was what happened to my EA application.

Good luck to your RFE.

Shintaro
 
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I got my appeal approved after 14 months waiting. It took me by a huge surprise, since I wasn\'t expecting it at all.
My details as NIW, PD 2/98, RFE 5/98, denied 7/98, appealed 9/98, AAU approved 12/99. They sent me back 12 pages\' discussion of my case along with the approval notice. There are fairness in this world, sometime you have to believe it.
 
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Three more new letters (short ones). But AAU didn\'t pay much attention to the new letters, everything they mentioned in the 12 pages were from my original letters. And they didn\'t say anything about the NY DOT case at all. But that\'s a while ago, there weren\'t many denials on NIW back then.
Good luck.
 
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Mandy, the reason why NYSDOT did not affect your case was that yours was denied before NYSDOT. If I remembered correctly, Matter of NYSDOT was released on August 7, 1998.
Anyone, any thought?

Shintaro
 
happybird: did you appeal to AAO?

My NIW was denied with the exact same reason as yours on 9/14/01. I want to appeal. SInce I don\'t have a lawyer, I will write the appeal myself.
 
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