NIW (I-140) denied, no RFE, what to do?

L

ludhianvi

Registered Users (C)
Hello Friends:

Well, this morning, my sister got the email that her I-140 based on NIW has been denied and notice of denial has been sent. Just a quick background, we are from India, she did her Ph.D from US, has decent publications, reviewed articles for 3-5 journals and got recommendation letters from several scientists who knew her work. She filed her case in July (I guess) when the concurrent filing was open. We never received any notice of intent to deny or RFE, but straight-away denial notice. Her attorney is also surprised that USCIS didn't give them a chance to dispute their decision. This morning, when she talked to the attorney, the attorney said that they knew that USCIS is sending RFE because they received thousands of applications and USCIS is having a hard time finding and reviewing the supporting documents, and as such are sending RFE's to buy time. The attorney said that this is the first time they have heard about denial notice directly.

Well, my question for you Gurus is:

1. Can USCIS send denial notice directly or is it possible that they asked for RFE, but attorney somehow missed it? If it is direct denial notice, what are my sister's options? Can they challenge the decision, and what are the chances for a favorable outcome?

2. My sister is on J-1 visa, which is valid till 30 April, 2008. Her husband is a veterinary doctor, who is working part-time (1-day a week) with an NGO, and 5 days with a hospital. Since they filed for I-485 concurrently with their I-140, the J-1 visa will not be extended. Even if her employer files for H-1, they will not have any valid visa from 1st May 2008 to 30th Sept, 2008, that too if her H-1B comes in the lottery. What are their options to be able to work and live legally, in the USA.

I am stressed up right now, and keep forgetting about some more questions that I had in my mind. I will come back here when I have any new information or more questions.

Please, please, let us know what are the options and what to do now.

Thanks in advance.
 
Does she have the J1 waiver?

At which Service Center she applied?

Her PhD is from which field?
 
The J-1 waiver is not relevant for I-140, but it is for I-485. It is the I-140 that was denied, right?

What your sister should do is follow the directions on the notice to open an appeal. Her attorney can definitely help her in that. It is very unusual for USCIS to deny a petition without a prior notice. In any case, an appeal is the way to go right now.

Finally, I haven't heard of a USCIS email that mentions denial specifically. They either send emails saying the application was approved, or that they are requesting more evidence, or that they have "mailed the decision" (which usually means denial).
 
It makes sense if I-140 was filed concurrently w/ I-485. They don’t even look at your I-140 if you don’t meet all the conditions… That’s just my opinion.
 
Thanks for the replies.

Yes, it is I-140 that was denied. The email reads: Application Type: I140 , IMMIGRANT PETITION FOR ALIEN WORKER

Current Status: Denial Notice Sent

jk, you are right , it is very unusual for USCIS to deny a petition without a prior notice, that is what all of us are stumped on. Now, our hope is that they didn't look at the documents and wanted to send RFE, but instead sent denial notice. I guess we need to wait for the notice to see what actually happened. Meanwhile, any idea what should we do to maintain legal status?
 
Whats odd is that her NIW I-140 should not have been up for review yet. They are processing November 2006 at the moment (according to the updated processing times). Her I-140 is almost 9 month ahead of that schedule.

Her I-485 on the other hand is pretty much within the processing window. So they indeed pulled her I-140 from the shelf (ahead of the separate I-140 schedule) when the I-485 was ready to be adjudicated.
 
ludhianvi, your sister should immediate file an appeal to restore her husbands status. Its important that they appeal the I-140 denial, but also the denial of both I-485 which will come shortly. Keep in mind that her husband is immediately out of status and must stop working if he was using the EAD he got through the I-485 (he can keep working if he got an EAD through the J-2 route). Once the appeal is pending the interim benefits (AP, EAD) will be restored and they back in status. USCIS will not process any other I-140 while the appeal is pending, though. So if they can switch to H1 or O1, its probably faster to do that and then file a new I-140 + 2xI-485. Appeals take almost 2 years and the chances are minimal.
 
nscagony said:
Whats odd is that her NIW I-140 should not have been up for review yet. They are processing November 2006 at the moment (according to the updated processing times). Her I-140 is almost 9 month ahead of that schedule.

Her I-485 on the other hand is pretty much within the processing window. So they indeed pulled her I-140 from the shelf (ahead of the separate I-140 schedule) when the I-485 was ready to be adjudicated.
Click to expand...

https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=TSC
processing June-21-2007
 
ludhianvi,

After she had concurrently apllied I-140(NIW)/I-485 in July, did USCIS send her an appointment for Finger Printing?

S
 
Ludhianvi Sahib,

I am a veterinary doctor from pakistan, so just a different perspective. If your bro in law is licensed etc, perhaps he can file 140/485 from his employer. There is a national shortage of good licensed veterinarians.
 
It`s really sad.I never heard about such case. This is rediculous. Hope u r not kidding. they shud issue NOID atleast, before make decision. Good luck.
ludhianvi said:
Hello Friends:

Well, this morning, my sister got the email that her I-140 based on NIW has been denied and notice of denial has been sent. Just a quick background, we are from India, she did her Ph.D from US, has decent publications, reviewed articles for 3-5 journals and got recommendation letters from several scientists who knew her work. She filed her case in July (I guess) when the concurrent filing was open. We never received any notice of intent to deny or RFE, but straight-away denial notice. Her attorney is also surprised that USCIS didn't give them a chance to dispute their decision. This morning, when she talked to the attorney, the attorney said that they knew that USCIS is sending RFE because they received thousands of applications and USCIS is having a hard time finding and reviewing the supporting documents, and as such are sending RFE's to buy time. The attorney said that this is the first time they have heard about denial notice directly.

Well, my question for you Gurus is:

1. Can USCIS send denial notice directly or is it possible that they asked for RFE, but attorney somehow missed it? If it is direct denial notice, what are my sister's options? Can they challenge the decision, and what are the chances for a favorable outcome?

2. My sister is on J-1 visa, which is valid till 30 April, 2008. Her husband is a veterinary doctor, who is working part-time (1-day a week) with an NGO, and 5 days with a hospital. Since they filed for I-485 concurrently with their I-140, the J-1 visa will not be extended. Even if her employer files for H-1, they will not have any valid visa from 1st May 2008 to 30th Sept, 2008, that too if her H-1B comes in the lottery. What are their options to be able to work and live legally, in the USA.

I am stressed up right now, and keep forgetting about some more questions that I had in my mind. I will come back here when I have any new information or more questions.

Please, please, let us know what are the options and what to do now.

Thanks in advance.
Click to expand...
 
I agree with leviathan - First order of business you should call USCIS and enquire as to what happenned. Do you see LUD's? Just make sure they did not send an RFE to attorney which fell through the cracks or lost in transit. Then you will have to seriously consider what your options are. Good luck. Ask her to hang in there.
 
Thanks friends for the responses and encouragement. I will try to answer everyone's questions to the best of my ability. We have checked with the attorney, and he does not recall receiving any RFE, so I dont know what to say. Let's say they sent RFE for documents which was lost or not responded to (by the attorney), what are the chances of success when they appeal the decision.

Goviks, I am not kidding, this is a life-changing situation, and I dont feel that anyone will like to joke around this one. We are all so much stressed up that none of us got any sleep last night. I just hope that this is a cruel joke played with our lives by USCIS.

Jadoo, my bro-in-law is licensed professional. His employer is willing to file the paperwork, but then the problem is what if his number doesn't come in the lottery, same thing happened last year, he didn't cut it in lottery. I know we have no option, we are going to take this route again this year, but it is so demoralizing that after spending so many years in this country, still there is no guarantee that things will work out.

Stranger, yes they did got their fingerprint appointment, and it was done within last 2 months. I am sorry, but I dont remember the exact date.

nscagony, what do you mean by chances of success for appeal are minimal?
 
ludhianvi

Did your sister get an official denial letter from USCIS? Because my friend got exactly same email on same day (30 jan 2008). He is still waiting for a official letter


Thanks
 
Well, this is something new, never happened before (as far as I know from this forum).
Keep us posted.
Usually it takes a week or ten days to receive the official letter after the email notice.
 
Received the denial letter today. It says that I-140 Denied due to missing supporting documents. Checking with our attorney, he said that he has contacted AILA Liaison officer, and hope to hear back within a week. We are not sure what the officer will be able to accomplish though.

I mentioned that my sister's EAD was approved. Apparently, attorney mistook receipt notice for the approval notice.

What does everyone here feel, is there a good chance for appeal when they say that documents were not received? Please Gurus advice us....


Good Luck (to us, and everybody in this mess)..
 
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