NIW-denial

S

Sangita Ghosh

Registered Users (C)
I had earlier rec'd an RFE for NIW. There comments were mostly of a general nature questioning the intrinsic merit of the field. I submitted (per my lawyer) 4 more letters all expalining the importance of my work. Now I rec'd a denial. My lawyer suggests motion to reopen before appealing. Is he right?

My lawyer suggest getting strong statements from my references asking BCIS (or appeals office??) to DEFER to an experts opinion (meaning the references) and reiteraing that I am truly outstanding researcher. Any comments about this strategy?

Another point made by BCIS is providing letter from federal agency about the national impact of my work. As per my lawyer I am providing a letter from a previous reference from NIH stating that no federal employee can write this representing the agency. It is beyond the policy of such agencies. comments?

Any other ideas
 
Originally posted by Sangita Ghosh
I had earlier rec'd an RFE for NIW. There comments were mostly of a general nature questioning the intrinsic merit of the field. I submitted (per my lawyer) 4 more letters all expalining the importance of my work. Now I rec'd a denial. My lawyer suggests motion to reopen before appealing. Is he right?

My lawyer suggest getting strong statements from my references asking BCIS (or appeals office??) to DEFER to an experts opinion (meaning the references) and reiteraing that I am truly outstanding researcher. Any comments about this strategy?

Another point made by BCIS is providing letter from federal agency about the national impact of my work. As per my lawyer I am providing a letter from a previous reference from NIH stating that no federal employee can write this representing the agency. It is beyond the policy of such agencies. comments?

Any other ideas
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I'm sorry to hear about the denial. Out of curiosity, what do you do?

I defer to Topew's advice and go read some of the Appeal decisions on the BCIS website to see what they are looking for. The appeal is going to be a long process and I wish you a lot of luck.

Brian
 
Brian:
thanks, I am a pharmaceutical scientist working in a company. Have a ph.D.
Could you please send me the link , I could not find it

Do you know if this denial affects RFE-OR or pending EA decision?
 
Originally posted by Sangita Ghosh
Brian:
thanks, I am a pharmaceutical scientist working in a company. Have a ph.D.

Do you know if this denial affects RFE-OR or pending EA decision?
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Each of those petitions should be considered separately.

Pharm Sci people that I know at my company seem to get through in this category quite easily.

Brian
 
Originally posted by Brian:

"I defer to Topew's advice and go read some of the Appeal decisions on the BCIS website to see what they are looking for. The appeal is going to be a long process and I wish you a lot of luck."



I agree with Brian that it is a good idea to read the AAO appeal decisions to see how you could rescue your case on substantive grounds relating to the criteria. However, using an attorney will be your best bet in addressing the technical and legal issues regarding an appeal.
 
Sangita

could you please post the criteria you meet - like publications, etc.? i was in a similar situation almost a year back, but they approved the OR without much fuss (without a lawyer, too). the only glitch they had was in ascertaining if the job in question was a permanent one. also, is yours in VSC? i personally think it'd be easier to answer the RFE for OR since NIW has the NYDOT factor and what not! however, to your question whether this would affect the EA application, i think since EA is a notch up, it might be difficult to prove that one if the others are denied. but i still think your OR should be approved if taken up efficiently. good luck.
 
"However, to your question whether this would affect the EA application, i think since EA is a notch up, it might be difficult to prove that one if the others are denied."

It should not necessarily affect EA. They are different animals. You may have extraordinary ability (EA) but not in an area of national interest (NI). You may also be in an area of NI, but do not have EA!

The criteria for EA are well laid out. You either meet them or you do not. If you read AAO decisions, NIW is more discretionary and very depedent on independent letters. For OR, you need to meet two criteria, but must, in addition, prove "international recognition." National recognition is not sufficient for OR, but it could be for EA. For EA, you can either prove national or international recognition by meeting three criteria.

Please see www.3law.net, which provides a good description of the subtle differences between the three categories.
 
Re: Sangita

Originally posted by orca
could you please post the criteria you meet - like publications, etc.? i was in a similar situation almost a year back, but they approved the OR without much fuss (without a lawyer, too). the only glitch they had was in ascertaining if the job in question was a permanent one. also, is yours in VSC? i personally think it'd be easier to answer the RFE for OR since NIW has the NYDOT factor and what not! however, to your question whether this would affect the EA application, i think since EA is a notch up, it might be difficult to prove that one if the others are denied. but i still think your OR should be approved if taken up efficiently. good luck.
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I had about 10 publications, had 16 letters from other scientists/professors of which 4 were my previous collaborators from around the world, but none from my supervisors. Infact, the OR-RFE mentions this point that my supervisors have not written lettrs for me, which I feel is a good thing as now I can get letters from them. My appln was in CSC.

Also, the OR case mentions that resumes of these references were absent. My lawyer says if he had provided them, then BCIS can easily show that I am not better than them (as one of them has 2000 papers, and is 75 yrs old!)

The letters clearly stated that I am "at the very top of my profession". BCIS stated that the letters look average and do not state that I am better than most others in my field. As per my lawyer I am now getting letters from my previous references to that effect and also a few additional letters.

BCIS also has asked about the journals that published my papers: how often are they published, what is the circulation etc, if they are local, national or internation. This I feel could work for me as all these journals are international.

Most importantly, at the end, BCIS concludes that I am not outstanding in "material science and engineering". I do not belong to that field. My field is pharmaceutical science and biophysics. Clearly, they have not read my application.
 
Extraordinary vs Outstanding

Originally posted by topew
"
For OR, you need to meet two criteria, but must, in addition, prove "international recognition." National recognition is not sufficient for OR, but it could be for EA. For EA, you can either prove national or international recognition by meeting three criteria.

Please see www.3law.net, which provides a good description of the subtle differences between the three categories.
Click to expand...
According to BCIS immigration rule "extraordinary ability" is defined as a "level of expertise indicating that the individual is one of those few who has risen to the top of the field of endeavor." By definition, an extraordinary ability worker is one who belongs to that "small percentage" that have "risen to the very top of the field” who has received NATIONAL OR INTERNATIONAL ACCLAIM for work in their field of expertise

The second subcategory, outstanding professors and researchers, requires that the beneficiary be INTERNATIONALLY RECOGNIZED AS OUTSTANDING in specific academic area and, in addition one meets certain other requirements (such as three years teaching or researching experience).

The word “NATIONAL or INTERNATIONAL” in EB1-EA category is used to demonstrate “ACCLAIM”, however “INTERNATIONAL” in EB1-OR to recognize one’s reputation.

My personal opinion that it is easier to prove one’s “international recognition” in the field of expert than national or international acclaim. For example an invited lecturer in one international symposium or an article in international circulated journal may rise one as an international recognized person, however it might not be always possible this person has national/international acclaim, at least it is true to BCIS.

The website linked by ‘topew’ is just opinion of one “Law Firm” which does not necessarily establish the fact that EB-OR standards are higher than EB-EA. There are also contradictory claim as for example

http://www.hooyou.com/eb-1/aea_vs_orp.html

The non-requirement of job offer also indicates higher standards of EB1-EA than EB1-OR, since the people in first category are already at “very top of the endeavor” as acclaimed nationally or internationally, and are considered they are high demanding to the job market of USA. This is not the case for EB1-OR and one needs to prove a permanent job offer as well as three years’ experiences which also indicate that BCIS wants to see the person is already involved in contributing research/teaching in USA. To the eye of BCIS, the requirements of EB1-OR does not ensure immediate availability of job to the beneficiary.
 
"The website linked by ‘topew’ is just opinion of one “Law Firm” which does not necessarily establish the fact that EB-OR standards are higher than EB-EA. There are also contradictory claim as for example"


I believe that you misinterpreted my posting as well as the postings on the two websites at 3law and hooyou. I have visited both websites on several occassions. Neither websites nor I indicated that "EB-OR standards are higher than EB-EA."

The point that I made, which AAO has also emphasised, is that petitioners under EB-EA can meet those criteria by focussing on the "national" or "international" attributes of their qualifications. On the other hand, petitioners under EB-OR can not focus only on the national attributes of their qualifications, they must also prove "international recognition.

More importantly, my original posting was to ensure that the petitioner will not be discouraged because his/her petition was not approved under NIW. By pointing out the subtle differences between NIW, EB-EA, and EB-OR, the petitioner can evaulate his/her chances in the other two categories.
 
topew and $$01011964

going over your posts and the URL's, while i still feel that EA has greater chances of denial if OR also gets denial (which it hasn't, by the way - but if nothing else, from the psychological point of view of the adjudicator/s, it's hard to be convinced - after all, they are humans too), there's no reason to be discouraged if that's the point being made here. in addition, i'm sure sangita could have OR Oor even EA) approved pretty smoothly judging by her accomplishments. good luck.
 
My experience

Sangita,

I'm now in 485 stage for over a year. But I did have NIW denial experience to share.

I was denied in Nov. 2001 for first NIW trial after RFE. Naturally I was too agitated to want to fight back right away. But fortunately I held my horse.

Here is what I do, instead of motion to open or appeal, I just filed NIW AGAIN with my weakness mended. I was approved in Feb. 2002.

Reapply might not be a good strategy if NIW takes too long to approve.

Good luck!
 
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