NIW got rejected after from RFE Texas Service Center

J

jelly

Registered Users (C)
My NIW got finally rejected.
I am in the 5th year of my H1. Please advise me what to do now?
I have Ph.D. in biochemistry, have 6 published papers in international journal,3 papers accepted, 8 papers in conference proceedings, 1 US patent pending, have memberships in 4 scientific societies.
 
jelly said:
My NIW got finally rejected.
I am in the 5th year of my H1. Please advise me what to do now?
I have Ph.D. in biochemistry, have 6 published papers in international journal,3 papers accepted, 8 papers in conference proceedings, 1 US patent pending, have memberships in 4 scientific societies.
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What exactly was the reason for rejection? The third prong of NYSDOT? Also, how many reco letters did you have and from whom? Could you tell us these details?

Thanks

I just wanted to add that you should look for a sponsor for your green card (your company) and go through labor certification thru the RIR route. You are in your fifth year and may be you might still have the time.
 
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First, make sure you are in valid status after rejection (please see my response to Joo77) - do you keep your valid non-immigrant status such as H-1?
Then, you may file another I-140, maybe even without LC (employment- based OR sponsored by a very good company or better a University).
You may also file an appeal (not much chance to work but it worked for me, again see my response to Joo77).
 
INS said alien could not establish (i) exceptional abilities (ii) how national interest will be affected if LC is required. These are the points which my lawyer told me. I am really depressed. I wasted so much time and money. I submitted total of 10 reco letters.
 
It is surely upsetting. We are in the same boat. But, there is always a way to work out. As Compass said, appeal is one option. I am currently work on that with my denial. At same time, try to collect new letters for a new try, maybe EB1-EA. Which service center you are in?
 
jelly said:
INS said alien could not establish (i) exceptional abilities (ii) how national interest will be affected if LC is required. These are the points which my lawyer told me. I am really depressed. I wasted so much time and money. I submitted total of 10 reco letters.
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Jelly - I ain't no lawyer, but what "exceptional abilities" has to do with it (apart from qualifying for EB-2 in the first place, that is)? The three prongs are - intrinsic merit, national benefit and negative impact (your point ii). Zhang and Assoc. had an article on similar things at http://www.hooyou.com/niw/News&Articles/news012704NIW.htm and they seem to maintain that TSC acted unreasonably. I am kinda in the same boat since I have NIW pending at TSC. Could you please comment if your lawyer specifically cited NYSDOT and addressed the three prongs? Have you seen the actual denial letter? You might have a chance on appeal, although I would take time to regroup and decide on future plan of action. Good luck!
 
Jelly,
Don't loose heart. Still you have sufficient time in your H1 to try out other options. If your employer is willing you may try for EB1-OR or otherwise give a trial for EB1. INS is really unpredictive, luck also matters. Explore all avenues, you may also do self petitioning.

jelly said:
INS said alien could not establish (i) exceptional abilities (ii) how national interest will be affected if LC is required. These are the points which my lawyer told me. I am really depressed. I wasted so much time and money. I submitted total of 10 reco letters.
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first off, find a competent attorney who can handler this matter. I don't think your case was well prepared by your attorney.
 
Call me Shrek said:
Jelly - I ain't no lawyer, but what "exceptional abilities" has to do with it (apart from qualifying for EB-2 in the first place, that is)? The three prongs are - intrinsic merit, national benefit and negative impact (your point ii). Zhang and Assoc. had an article on similar things at http://www.hooyou.com/niw/News&Articles/news012704NIW.htm and they seem to maintain that TSC acted unreasonably. I am kinda in the same boat since I have NIW pending at TSC. Could you please comment if your lawyer specifically cited NYSDOT and addressed the three prongs? Have you seen the actual denial letter? You might have a chance on appeal, although I would take time to regroup and decide on future plan of action. Good luck!
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Exceptional ability has creeped into the requirements for NIW. This has been the case for several years now. This is why a lot of attorneys won't touch NIW...they have to prove EA and national interest. TSC may have acted unreasonably in this case, but the bar of exceptional ability was raised a long time ago.

Brian
 
But my point is - jelly might have a chance appealing objection (i), as "exceptional ability" is not codified in either the law or NYSDOT decision. Now, given that he's got objection (ii) to boot, I am not necessarily convinced appeal would be the right avenue.

In the broader perspective, I wonder if there are enough NIW applicants who got shafted on "exceptional ability" business to gang together and seek judicial review of the matter? Hmmm, maybe I'll start a thread on it when I have time.

Shrek
 
There are some cases that AAO overturned service centers' decision on NIW, and saying requirements for EA should not be used in NIW. But it looks service centers still do this. It is also in my case. Hopefully the case could be corrected by AAO. So try to appeal is my opinion, you have nothing to lose more.
 
Exactly, if you look at original EB2 requirements, it has two conditions. Either BS with Exceptional Ability or advanced degree holders (MS, Ph.D.). Several administrative decisions have indicated asking EA evidence for advanced degree holders is moot. However, only BIA decisions have binding power to USCIS not administrative decisions, which means if you quote cases from administrative decisions in your petition, USCIS can disregard. The tricky part is that if your denial is based on lack of EA evidence not third prong, your chance of winning appeal is high. Please consult lawyer to verify. Good luck.

Bystander6
 
Y'know, Bystander, I have a naggin' suspicion that CIS just picked (at random?) jelly to screw him over, even though they shoulda approved his case - and threw the "third prong" in just to make appeal difficult, 'cos "exceptional ability" issue wouldn't stand on its own...
 
jelly said:
INS said alien could not establish (i) exceptional abilities (ii) how national interest will be affected if LC is required. These are the points which my lawyer told me. I am really depressed. I wasted so much time and money. I submitted total of 10 reco letters.
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Jelly, for you a fresh EB1-OR will be the most suitable option provided your employer agree. I would not recommend to go to AAO. It takes lot of time and success rate is too low.
 
tom2 said:
Jelly, for you a fresh EB1-OR will be the most suitable option provided your employer agree. I would not recommend to go to AAO. It takes lot of time and success rate is too low.
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tom2 - I wonder, what could keep jelly from doing BOTH? Assuming he's willing to commit additoinal money/energy to the gamble, that is?

Shrek
 
zhul said:
Jelly, did you appeal against the denial? if yes what additional evidences have you includes?
-zhul
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No :( . I decided to go for a new EB1-EA petition. I have kicked my old attornry :D . Now I am preparing my petition myself. I am taking help from GCFY. Now I am realizing what mistakes I made last time. This forum has also been of great help to me. I am feeling much more comfortable now.
 
Jelly

I think CIS is extremely picky about awards (other than best poster, fellowships etc) these days for EA. Moreover in the documentations/ letters (from persons who have not collaborated with you and who are leaders in their field, plus include their abridged CV) try to prove that you are amongst top 1% in your area. When did you complete your PhD? You might consider OR also.


jelly said:
No :( . I decided to go for a new EB1-EA petition. I have kicked my old attornry :D . Now I am preparing my petition myself. I am taking help from GCFY. Now I am realizing what mistakes I made last time. This forum has also been of great help to me. I am feeling much more comfortable now.
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jelly, can u please share your documents with me. i have also sent you a private message, please reply.
 
My NIW got finally rejected.

Jelly:

I am no expert,however a couple of things to ponder about:

Question: Is your job secured?

If yes, shoot for EB1-OR right away. Since you have the stuff with you, it should'nt be hard. I have seen approvals within an year (@ TSC) from USCIS website I understand that I-140's are getting approved around 11 months. How is your relation with your employer? The default class for employers is "slave drivers".

If its not good its time to move. Apply for a faculty position (tenure track) immediately. There are positions opening up at several places for Fall, 2005. Another alternative would be to apply for non-tenure track (this in turn would qualify you for EB1-OR) but it might not release you from slavery.

Surviving in US is one thing but certainly its not the end of the world! Your talents might be better appreciated elsewhere. So cheer up!

Good luck.

Krish
 
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