NIW-140 rejected! Should I appeal?

Hadron,
Can I immediately file another NIW immediately if I start a new job, say two months from now?
Or, if I appeal, that will exclude me from filing a new NIW before the issue is resolved, right?

Does it make sense to write in an appeal that I plan to leave this job and for that reason it would be unrealistic to expect LC from this employer,'coz INS
contends that I have H1 for a long time, so i should go through LC.
 
> Can I immediately file another NIW immediately if I start a new job,

I am not sure, but I think you can only have one application per category pending at any time. Also, you have to wait 6 months after the final adjudication of a petition to file in the same category again (this is stuff I THINK I remember and by no means authoritative information) An attorney should know this kind of stuff.

> 'coz INS contends that I have H1 for a long time, so i should go
> through LC.

Did they actually argue that ??


What state are u in ? Is it just bad for LC or really bad ?

Is there a viable commercial application for the work you are doing? If yes, you really might want to look for an industry job for a while. You can go back to academia later if you feel like.
 
Hadron, again the problem is that the employer did not want to support LC.
INS writes...

...In fact the petitioner must show that by not being given immigrant status the national interest would actualy be harmed. THe petitioner has failed to establish that such harm to the national interest would occur if his employer took the extra time to obtain a LC through the normal certification process. This is especially true considering that the petitioner is currently in US on H1.
If the petitioner's employer applies immediately for a labor certificiation,
the process may even be completed prior to the expiration of H1.
 
As can be seen from http://uscis.gov/graphics/lawsregs/admindec3/ AAO rejects almost all the appeals. So it is always wise to make initial petition as perfect as possible. Another interesting thing that is to be noted from above link is that the cases which were represented by attorneys have higher rate of rejection.
 
I looked into them maybe one year ago, there have been a number of interesting ones since. Most of the denials seem to be on grounds of educational experience for the LC based EB-2 cases. For the NIW's they play their silly NYS-DOT game.

If you want to appeal, try to beat them at their own game. The AAO decisions are interesting as you can find the detailed reasoning behind why they deny certain NIW cases. (rather than the brief note in the denial notice or RFE)

You have to learn to anticipate every argument they might make. Try to pull the .pdf's print the discussion sections and dissect them into their arguments used to:
- deny based on 'lack of intrinsic merit' (few and far in between)
- deny based on 'lack of national scope' (more)
- deny based on 'failure to establish how LC would hurt national interest' (most).

Also, they frequently quote the arguments made by petitioners and their attorneys to refute these items, check for the ones that worked and the ones that didn't work.

They don't have a lot of phantasy, the same arguments tend to pop up over and over again. If you know how to pre-empt their argument, maybe you can give it a good fight. What is the filing fee for an appeal anyway ? If you don't take a lawyers time, maybe it would be worth it just for the entertainment value.

And again, for NIW they don't care so much how smart you are, they care about the 'three questions' (sounds almost religious).

(Maybe, I'll go back to law-school one day. I start to understand where lawyers get their kicks from.)
 
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I think that's exactly what I will do, i.e., appeal for the fun of it.
I am not going to get help from a lawyer, I don't have that much money.
the filing fee is 110USD.
I got the decline letter 20 days after the notice date, which leaves me less than 10 days to reply. even that is stinking.
but I'll keep you guys posted if something happens.
In the meantime, if you come up with any plausible arguments, please let me know.
 
> I think that's exactly what I will do, i.e., appeal for the fun of it.

After reading through some of the decisions, I wonder whether there are a good number of people doing just that. Some of them have gotten labor certs while the NIW is beeing appealed, others have changed careers alltogether.

> I got the decline letter 20 days after the notice date, which leaves me
> less than 10 days to reply. even that is stinking.

In order to file a timely appeal, you just have to file the form with a basic claim on the merits of your appeal in time. I noted on some of the attorney appealed cases, that they initially just scribbled something on the appeals form and provided a detailed brief explaining their appeal later. I would think that as a self-represented appealant (is that a word) you should have the right to do the same. (please confirm that from a better source than me, I believe this to be true but I am surely no expert)

If you choose to file your appeal piecemeal, you want to be careful that none of your communications with the service contradict others you have made in the past. (e.g. If you said a certain job was post-doc in the past, you shouldn't claim that you are 'instructor' now) They can become real nit-pickers using every word you said against you. (In one case they argued that the fact that someone was LOOKING for a job in FL with a NIW related to NY, was evidence that the petitioner had abandoned her initial plan to go to NY. It doesn't appear to these dimwits that she had to do this in order to get an H1b and maintain status in case the revokation of her I140 would be sustained by AAO)
 
Special handling LC and NIW

I am a researcher working at a University and my employer is willing to sponsor labor certification. They are only going to sponser me for LC based green card so no EB1-OR for me.

In NIW one has to make a case of intrinsi meritis, national in scope, and national interest. As I read some of the post and my interpretation is BCIS does not buy the aurgument that Labor certification takes too long.

My qestion is in special handling LC does petitioner has to mention arguments why university is seeking special handling over usual RIR or tradional labor pathway? As a matter of fact special handling LC is a RIR LC but I don't the exact difference. Or would it be sufficient to state under this #### law permits a university to seek a sp. handling LC or one has to provide more evidence for this.

Does any one know what is approximately time period for the special handling Labor certification. In general it is faster than regular RIR?

I am really anxious regarding long delays for LC and now I am thinking of applying for NIW too. Although I don't have very strong credentials like patents or nature papers but I am working on HIV vaccination so this may be worth trying NIW case.
 
unfortunately, I don't have much info about the LC myself.
However, since your employer is willing to sponsor it, it is a big thing.
Most employers would not, saying that your job is not permanent.

Based on my experience, if you don't have papers, patents, etc.
it would be almost impossible to get NIW approved. Especially, in your
case, where your employer is willing to sponsor LC. INS will argue that
LC is exactly for your case, so there is no argument unless you
can prove that you are a really big shot in the field!
I recommend you stick with LC, I hear that there are ways to speed it up,
but again I don't have any info myself.
 
mayedek said:
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.
Click to expand...
mayedek, have you filed the appeal? if yes, what further evidences you provided?
 
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