NIW I-140 denialed, appeal or not?

T

tscniw06

New Member
I am new to this sites. Please help me with my ergent situation.
I have self-filed my NIW I-140 to TSC in September 2005. RFE was received in November 2005. I hired an attorney to reply the RFE and filed in Feburary, 2006. It was denialed March 8th, 2006.
I am a postdoc doing research in cardiac diseases and development. Previously I worked in cell biology and cancer research. I have 17 research papers (3 first author) in academic journals though the impact factors of the journals were not very high. The papers were cited for more than 180 times. Two papers (I was the second author) appeared on the cover of the respective journals. I have strong letters form supervisors, colleagues (5) as well as people who have never worked with me (3). In the RFE , nothing specific was requested other than requesting materials to fulfill NYDOT requirements (all the requirements!). Without a clue what was missing, my attorney just replyed with all my material again plus 3 revised and two new supporting letters. In the denial letter, again no specific point, just pointed out that I can not establish exemption from labor certificate.

Here are my questions:
1. Do you gurus think I should appeal? Can you suggest an attorney in Texas?
2. Do you think if the appeal is sustained, my concurrent I-485 will become alive again?
3. If I appeal and reapply at the same time, do you think the appeal will adversely affect my reapply?
4. If I appeal and the case is remanded to USCIS (AAO's decision includes sustain, dismiss and remand), how good the approval chance by USCIS will be?
5. What do you think should be included in the appeal?

There is not much info I can find on the net about appeal, so any input from you will help me a lot. Please help! I only got like 25 days left.
 
I did appeal and later my NIW I-140 was approved.
I did it through my lawyer, in 2003, I posted all available info in my former posts, please search for them for details (it was CSC).
I had only I-140 at that time, so do not know what happen to I-485 but think if appeal will be approved, then they re-open your I-485 and PD will remain same. But meanwile you must have valid non-immigrant status like H-1, appealing does not give you such status.
 
First you should fire your current lawyer.

Second your background is strong enough for NIW, I believe.

Third you should go through AAO decisions. I read some and as far as I can tell, any denial without specific reason(s) were overturned (or returned to the service center to re-adjudicate).

Your attorney should have noticed these decisions. As I remember some of them specifically said those “broad brush” RFEs are not accepted.
 
pplu said:
First you should fire your current lawyer.

Second your background is strong enough for NIW, I believe.

Third you should go through AAO decisions. I read some and as far as I can tell, any denial without specific reason(s) were overturned (or returned to the service center to re-adjudicate).

Your attorney should have noticed these decisions. As I remember some of them specifically said those “broad brush” RFEs are not accepted.
Click to expand...

Thank you very much, pplu. Do you know where I can find AAO decisions? I only found some old ones back in 2002 in an attorney's sites. Do you know if USCIS or AAO sites that have such decisions? I really appreciate it.
 
Based on your description, I think your lawyer did not do a good job. In any event, USCIS is not contesting that your qualifications for EB2. The RFE is focused on the third prong (Why you should be exempted from going through the labor certification process?). Although your reference letters may have addressed this point, it is the petitioner's responsibility to highlight it to the officer reviewing your case, perhaps in the cover letter. If you look at the AAO decisions, it is always stated that the burden of proof lies with the petitioner (i.e., the officer does not necessarily have to search for your merits if you fail to highlight them).
Look for an experienced immigration attorney to get a better assessment of your current situation. What is your present lawyer's recommendation?
 
From your original RFE, it is clear that USCIS is specific about the third prong. You need to show three things: (1) why your labor certification should be waived? (In other words, why you should be given preference over a U.S. citizen or permanent resident with minimal qualification for that job); (2) your petition is not based on labor shortage in a particular field; (3) the intrinsic merit of your petition should be national in scope.
It is faily easy to address points (2) and (3) based on your qualifications. Since you have received a large number of citations, it is also may not be difficult to address point (1). Typically, you need to show your specialized qualifications outweight the NIW. A simple argument showing you did a pioneering research or invented certain techniques etc. would suffice, which could be amplified in the letters of recommendation. If this is what you have done in responding to your RFE, then the outcome of your appeal would most likely be positive.
 
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