NIW(CSC) denied - appeal?

[TurtleWalk]

My NIW case was denied at CSC after RFE.

The main reason stated in their letter is
Considering the self-petitioner is currently in the US in an H1B status, the employer can obtain a labor certification through the normal labor certification process.

Please advise:
1. How to address this point?
2. How is the chance of approval after appeal?
3. How long does it take for the appeal to reach a decision?

Thanks a lot!

 

[kaixin]

Are you a researcher working at a university? Do you have your lawyer? It's better to let us know a little bit about your background. In answer to the first question, I think you sould say that through the normal labor certification process, your employer can easily find a lot of other people to replace you. However the project you are participating in would be adversely impacted due to their low qulification. Do I understand right?

As to the other two questions, I have no idea since I am waiting for my RFE notice too.

My NIW case was denied at CSC after RFE.

The main reason stated in their letter is
Considering the self-petitioner is currently in the US in an H1B status, the employer can obtain a labor certification through the normal labor certification process.

Please advise:
1. How to address this point?
2. How is the chance of approval after appeal?
3. How long does it take for the appeal to reach a decision?

Thanks a lot!

 

[kaixin]

By the way, what were the RFE questions and how did you respond to them? I guess you were not questioned this point in the RFE, and thus you and your lawyer ignored it. Anyway, good luck to you!

My NIW case was denied at CSC after RFE.

The main reason stated in their letter is
Considering the self-petitioner is currently in the US in an H1B status, the employer can obtain a labor certification through the normal labor certification process.

Please advise:
1. How to address this point?
2. How is the chance of approval after appeal?
3. How long does it take for the appeal to reach a decision?

Thanks a lot!

 

[NIW-Nov 04]

You will most likely get third prong of NYDOT.

 

[eaglejoeli]

I haven't seen the whole letter you have received so I can't comment much. However, if the main reason for denial is "employer can file LC for you", you shoulde DEFINITYELY appeal because CSC is not playing by the rules.

As you know, in order to get NIW approved, you need to show that a waiver of LC is in the national interest, and need to pass a 3-prong test. I guess that you passed the first two (i.e., you work is of intrinsic merit, and of national scope). The third test is "it is contrary to national interest by depriving the prospective employer of the service of the alien by making the position available to U.S. workers"

Therefore, as long as you have provided sufficient evidence to show that it is contrary to the national interest by depriving the prospective employer of the service of the alien by making the position available to U.S. workders, you qualify for NIW.

Whether your employer can or can not, will or will not file a LC for you is irrelevant to your qualificatoin. And it certainly should not form the basis of a denial.

Also, notice the word "prospective employer". "Prospective employer" is not the same as your current employer which sponsored your H1B. A prospective employer could be any company or organization that needs someone with your expertise in the present or in near future. It could be a company that your have never heard of, or never contacted yet. How could the USCIS know whether these prospective employers can or cannot, will or will not file LC for you? Therefore, even if your current company can get you a LC quickly (and by doing so avoid harming the national interest), you can still pass the third test. This test should be applied to a hypothetical "prospective employer", not to one particular company that has sponsored your H1B. I think you need to hire a good lawyer to prepare a good appeal.

Finally, good luck to you. Remember, never quit, never surrender, fight every inch, fight to the end, fight until you win. And let the folks at USCIS know that it is absolutely easy to approve. But to deny a case, they need to spend much time and effort.

 

[TurtleWalk]

Thank you all! Here is more information

In the RFE letter, they requested more evidence for:
1. the detail and benifit of my proposed work
2. my work is national in scope

They also wanted testmonial letters from government agencies. I submitted 2 letters addressing those two issues but unfortunately none is from government agencies.

In the denial letter, they first mentioned that the letters are from experts in my field, not from "objective authority", thus they are subjective. But then they say:

Based on the testimonial evidence, it does appear that his work has substantial intrinstic merit. ... In addtion, it appears that his work is national in scope. ... Thus, the petitioner has adequately shown that his research has benefited, and will continue to benefit economy and security in the US.

However, the self-petitioner has failed to establish that the national interest would be adversely affected if a LC were required for him. ... 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 labor certification through the normal LC process. This is especially true considering he is currently in the US with H1B.
[End of Quote]

My lawyer thinks that USCIS has conceded two points: intrinsic merits and national impact, but not the third point: adverse effect if labor certification were required.

But I don't know whehter the lackness of supporting letters from "objective authority" is another reason.

Please evaluate how my case stands for the appeal and please advise how to address the issues.

Thanks!