NIW-140 rejected! Should I appeal?

M

mayedek

Registered Users (C)
thank you all for your suggestions. my NIW 140 was rejected.

CSC agrees with the substantial intrinsic merit, and national in scope,
but they say I could not establish that national interest would be adversely
affected if a labor certification were required for myself. I am a researcher
in a university.

do I have a chance if I appeal?
what are the arguments I would use about the urgency of my application?
they tell me to go through the LC, but my employer does not want to do it.
 
They always get you somehow

Classic NIW denial, if they don't get you with 'national in scope' they get you with the third 'prong' of the NYS-DOT decision.

Here is one way to argue against it if your employer wants to appeal:

Your lab chief + the chairman of the department + the chairman of a department cooperating with you + dean of research affairs write letters saying something along the lines of:

Dr XYX is an integral part in our effort to decipher the gene of the common navel lint. He developed the technology to extract navel lint ..........
The minimum requirement for a position of this nature is a PhD in epizoonotic biology and at least 2 years of experience in navel lint genetics. If the university goes through the LC process, we would be forced to offer the position to any candidate fulfilling the minimum requirements. However, the nature of this position and the critical importance of this position for the success of the project require an individual with qualifications far above the 'minimum qualification'. If we are forced to go through the LC process, the success of our project which affects a market of xx billion dollars is in jeopardy.

You can't argue: 'LC would take too long'. In their delusional world, labor cert only takes a couple of months.



Think about getting the university to file a:
-- EB1 Outstanding Researcher petition
-- 'special handling' labor certification (available to universities if there was a competitive process to fill the position. In this flavor, the university is exempt from the requirement to take the 'minimum qualified' candidate.)
-- appeal on the I140-NIW. This way, you still have enough rounds in your magazine if the appeal gets denied, but in case you prevail, you can preserve the priority date and the 'freedom' of not beeing bound to your current employer. ( With an OR or 'special handling LC' you will be tied to your current university. With a NIW you can accept that 'call' as chairman of navel lint research to MIT)
 
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NIW vs LC

To try and avoid NIW rejection due to the LC excuse by the service centres, should our letters of recommendation include anything about avoiding LC - if so how would this be written or is it the petition letter that attempts to justify why LC should be avoided or is it typically just not mentioned at all?

muji100
 
> or is it the petition letter that attempts to justify why LC should be avoided

It is the KEY ISSUE in your petition letter. I have seen successful lawyer written NIW petitions that started essentially with the words:

We know that you guys deny pretty much all NIW's since the NY-DOT decision, but this is why we believe you should make an exception here. Following the structure provided by the decision NYS-DOT vs. Reno (and then som lawyerese), we wish to state the following:

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 because... (then see my prior post). Please note the letter from Professor Highandmighty, dean of the college of science at Smalltown-U where he explains the adverse effects a labor certification for Dr XYX would have on the research project as well as the university as a whole.
 
muji100 said:
To try and avoid NIW rejection due to the LC excuse by the service centres, should our letters of recommendation include anything about avoiding LC - if so how would this be written or is it the petition letter that attempts to justify why LC should be avoided or is it typically just not mentioned at all?

muji100
Click to expand...

Muji100, Petition letter should clearly and strongly describe this issue. This is the most important point in NIW case. People often make this mistake and loose their case.

mayedek, if you appeal it gonna take long long time. I would recommend to give a new try. This time try EB1-EA and EB1-OR, you can file simultaneously in both of these categories.
 
NIW is very different from EA or OR. It is not so much about prooving that you can walk on water, it is more important to dodge the three bullets of the NYS-DOT decision.
The law on the NIW is pretty simple and straightforward. In pre-NYS-DOT times, pretty much everyone with a masters higher level education who was in either research or a managerial position in industry had a good shot at a NIW.
Only after that case it became like a paintball game. If you proove merit and national scope, they throw that text-element with the 'why don't you get a labor cert' in. If you manage to get merit and the LC exemption through, they will just deny that your work is 'national' enough. The latter two criteria are sufficiently fishy enough for them to use either for a denial. It is much harder for them to deny 'intrinsic merit', after all most work of educated folks has some sort of merit (e.g. navel lint genetics)
 
Hadron,
thanks indeed. But what if the employer is hesitant, claiming that this
is a process taking too long, and they don't want to get involved.
Is there an argument that I can use as self-petitioner for basis of appeal,
without getting any help from the employer? There is also possibilility
of me changing jobs.

thanks,
 
> But what if the employer is hesitant, claiming that this
> is a process taking too long, and they don't want to get involved.

What means 'employer' in this setting ? In order to appeal, you will need letters from academic folks like your chairman. As it is a self-petitioned case, you won't need any involvement by HR of the university. They tend to be complete morons in regards to immigration law anyway.
In order to get an OR petition or a special handling labor cert filed, you would probably need support from university administration. That is indeed hard to come by.

> Is there an argument that I can use as self-petitioner for basis of appeal,

Don't know. I mean you can argue the points yourself, but in order to impress them you want to be able to go as high as possible.
You said 'researcher', what level are we talking about. Post-doc, Instructor ?

> There is also possibilility of me changing jobs.

Might be your best bet. I still have no idea what your field of work is, but sometimes pharmaceutical companies and other industrial R&D employers are willing to sponsor someone for a LC if they have the qualifications necessary for the job. Go to www.flcdatacenter.com if you are looking at a potential employer and try to figure out whether they have gotten a LC for anyone in the past.
 
mayedek said:
Hadron,
thanks indeed. But what if the employer is hesitant, claiming that this
is a process taking too long, and they don't want to get involved.
Is there an argument that I can use as self-petitioner for basis of appeal,
without getting any help from the employer? There is also possibilility
of me changing jobs.

thanks,
Click to expand...
AAO decision takes really long and only in very rare cases it comes out favorable. So if you have other options try to explore those.
 
i'm a postdoc/insructor in electrical eng. i had submitted more than 10 letters both from industry and academia; INS discarded the letters saying that they are from colleagues. I don't know whether they can do that; these letters
are from high ranked universities, and people working at wellknown companies.
 
> i'm a postdoc/insructor in electrical eng.

Well, there should be some company or university out there that is willing to get a labor cert for you. Try to look for states where the combined processing time is low. Check the usual suspects, big multinationals like Siemens or GE have many branches in different states.

> INS discarded the letters saying that they are from colleagues.

Well, the letters weren't discarded alltogether. After all they agreed to the national scope and intrinsic merit of your work. In a NIW case, your person per-se is not as important, it is the job you do. Letters from former co-workers are not terribly useful, they look for 'experts' who can attest to your qualifications without beeing 'tainted' by working with you.
The thing with the third prong is more related to your employer explaining why a labor cert would not be an option for you.

Look online for the AAO decisions, I don't know where to find them off-hand but they were very instructional to see what cases they won't approve.

The others here are probably right, AAO takes forever and doesn't have a terribly high chance of success. But just on the remote chance that it goes through, it might be positive to have it pending.
 
Sorry to hear about this decision. And it makes me worry too, since I have filed a NIW application last month. At the time I wrote the petition I did not know this forum and what a great resource it is. I think I addressed the points "merit" and "national scope" based on the info I had from my lawyer and that I found on the web, but I did not specifically address the "labor certification" issue. But I descibed my research achievements and abilities in detail in the petitition (academic; ~30 papers; patent application; some invited reviews and presentations). Plus in some of the recommendation letters it is mentioned that my abilities are "unique" and "cannot be reproduced by others".
Does anybody of the experts here know whether this might be enough to address the "labor certification" issue?
Thanks
 
Mayedek,

Actually, if you have shared your ref earlier, maybe you could overcome this problem. At this moment, it is a little bit late to save your case. As the third prong, the following argument is generally accepted by the AAO:

"that if the petitioner is able to demonstrate persuasively that his or her contributions have been especially valuable, then eligibility for the waiver is established without further discussion as to why compliance with the job offer requirement would be detrimental to the national interest. While protection of qualified U.S. worker is in the national interest, it is also in the national interest to attract and retain proven leaders in various field of endeavor. There is no simple, universal test to balance these two national interest factors."
 
It was rejected after my reply to their RFE. I thought I made a descent case with a vast amount of documention, which I believe they didn't go through carefully.
 
What did the RFE say ?

Was that point regarding the failure to show the need for exemption from LC already made in the RFE ?

Did you craft your response with the aid of an attorney ?
 
Hadron,
I prepared the reply myself. The RFE seemed to be a generic response requesting documentation about the 3 items of NIW. The only part they seemed to be complaining about was

many of the supporting letters appear to be from associates, professors
in the petitioner's field and are more akin to reference letters than to his individual potential to the country on a national impact level.

They were asking more ref letters to demonstrate that my proposed work will substantially benefit the US to a greater degree than the work of others in the field.

There was no specific complaint about LC.
 
Well, I guess it is too late to salvage that I140 now. If you stick with the job, you might want to file another NIW 6 months from now (I believe that is the 'lockout time'). Make sure to structure it according to the lessons you have learned, independent letter writers, dedicated sections refuting the NYS-DOT type stuff.

At the same time, you might want to fire off an EB-1EA petition. If they didn't question your qualifications on the NIW replies, maybe you have a shot at EA. (or if you manage to get your university on board, EB-1OR. You only need 2 of the 10 items from the EA list)

Maybe it is time to bite the bullet and hire an attorney knowledgeable in the 'premium categories'. (Not one of the usual shysters who can fill out an I130 and still f___ that up. I hope none of my lawyers reads this, current counsel is excluded from this assessment)
 
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