Very general RFE. Please need advice!

[Fgsilva]

I applied for I140 (E-21, NIW). last year, 09/05, receipt date 9/29/05 at the CSC. Case got transferred to TSC march 23/05. Last week got a very general RFE letter. Here are some highlithts from the letter:

"THe record shows that the petitioner filed an I-140 "Immigrant Petition for Alien Worker", seeking to employ the beneficionary. th petitioner is seeking classification under Section 203(b)(2), as a member of professions with advenced degree or of exceptional ability. IN addition, petitioner is requesting that the job offer and the correlating labor certification from the Department of Labr be waived in the national interest.

Matter of New York state dept of transportation... enumarates facotrs that must be considered when evaluating a request for a national interest waiver."

"Submit evidence to persuasively establish that the national interest would be adversely affected if the beneficiary were required to obtain labor certification from the US Department of labor.
Would a US worker with the same minimum qualifications be able to perform the same occupation and serve the national interest to a similar degree?
How will the individual alien serve the national interest to a substantially greater degree than other individuals in the field?
Submit evidence tha tdemonstrates the alien's specific prior achievement would justify the projected future benefit of the alien to the national interest. Please submit evidence showing that the beneficiary's accomplishments were both (1) important to the beneficiary's field of expertise and (2) imperative to the realization of furhter advancements in the field. Please explain in concise and detailed terms how the accomplishments qailify in these two ways. If there are anyh published material citing the importance of these accomplishments, please submit copies to support your cliams(s)."

These were the most relevant parts of the letter. What bugs me is that all that the letter requests was ALREADY SUBMITED!! all my references emphasized my uniqueness and relevance of my work. I have ALREADY submitted citations and even reprints of newspapers commenting on the importance of my research! did they just not read it or maybe I didn't do a good enough job presenting my case?

My credentials: I have a PH.D. from american university; 5 years as a post-doctoral research. About 12 publications, including one that was the cover issue for a major journal. My publications have been citated many times and, as I stated above, the relevance of my research has been mentioned in the press also. I submited 12 reference letter from US (university and federal agencies) and foreigns scientist.

Has anybody received similar RFE? Not sure if I should just submit the same evidences but in a more presentable way or perhaps, hire an attorney to have them present my case in a better way. Any advices will be welcome.

Thanks

 

[2006gc]

fgsilva:
As per your description, in your original submission you have emphasized that you are an exceptional alien with an advanced degree. You have to address the three points in the NYS DOT case. That is exactly what the officer is asking you to do!
Why you should be exempted from from the labor certification process?
Why a US permanent resident or US citizen do your job?

It is not sufficient that the type of work you do is in the national in scope and of national interest. You have to persuasively argue that this country would lose if you were not exempted from the labor certification process. You have to argue these points according to your situation. Note that the labor shortage in a particular field alone MAY NOT satisfy this requirement as the officer will argue that this is the purpose of labor certification process! If indeed your field and your talents are unique, no qualified US citizen can fill the position when it is advertised. So you should go through the labor certification process.
I would recommend that you speak to a few experts here like ebdoc, eldhon etc. to get additional suggestions. Frankly, I would seek a lawyer to respond to this RFE. It is not difficult to address your RFE given your background and qualifications.

 

[Fgsilva]

Hi guys,

thanks for the replies. I guess I'll really have to get an attorney. Hopefully the won't charge me the same as if they're preparing the whole case. As for LUD, do you mean after 3/23/06? If that's your question I only got a couple. The first one was to inform of my change of address (even though the RFE letter still went to the OLD address! ). Then the one informing me of the RFE letter coming. Nothing else since then.

This is not a general RFE. This is typical NYSDOT RFE issued for NIW related cases. Basically, you would need to answer this by elucidating the points outlined in the RFE along with new evidences in the form of more letters, publications, presentations etc etc.. Also you would cite that you previously submitted the more of the same hence I-140 should be approved. Hiring lawyer should be the best way to get over this.

BTW can you please tell how many LUD's after 23/06 you saw before receiving this RFE.

Thanks and good luck.

 

[nikkasingh]

fgsilva

this is not a general RFE at all. I would take this very seriously and try to prove the third prong. especially tailor letters from top experts in the field to include importance of your research along with your brilliance.

if you are not from a non-retrogressed, why not put in an EB1. you should get through there.

 

[Fgsilva]

Hey,

I already have 12 letters attesting the importance of my research, my brilliance and uniqueness. I now know what the problem was: my cover letter sucked! a colleague of mine with similar credentials actually did a better home work and got some online package advice. In his cover letter (24 pages!) he had already covered the issues that my RFE requested . His case was aproved last year within 3 months of RD! So, I may just write my RFE reply based on my friends letter and the online material he got (which also addresses RFE). If that still doesn't work out I may then contact an attorney.

Now, I didn't understand what you meant by "non-retrogressed"?

Update: Duh! I just read about the EB1 on here!

Thanks!

fgsilva

this is not a general RFE at all. I would take this very seriously and try to prove the third prong. especially tailor letters from top experts in the field to include importance of your research along with your brilliance.

if you are not from a non-retrogressed, why not put in an EB1. you should get through there.

 

[2006gc]

Fgsilva,
Take the RFE seriously. Try not to save pennies now... If the officer is not satisfied with your response, your I-140 will be denied. I don't think they will yet issue another RFE because you failed to address their concerns!
Just by repackaging your application will not solve the RFE. Anyways, if you want to take chances and proceed in that manner, it is your call. I would seriously hire an attorney, use your friend's case to improve your case, solicit more reference letters, etc.

 

[Fgsilva]

True. That's why I'm meeting with an attorney anyway next monday for advice. He successfuly helped a couple of people I know whom also applied for the NIW and were actually denied. AFter the attorney appealed they were granted the green card.

Fgsilva,
Take the RFE seriously. Try not to save pennies now... If the officer is not satisfied with your response, your I-140 will be denied. I don't think they will yet issue another RFE because you failed to address their concerns!
Just by repackaging your application will not solve the RFE. Anyways, if you want to take chances and proceed in that manner, it is your call. I would seriously hire an attorney, use your friend's case to improve your case, solicit more reference letters, etc.

 

[Fgsilva]

Now, isn't the EB1 category harder to get them the NIW? My colleague (the one I mentioned above) applied for both at the same time and for NIW he got aproved with no problem, but for EB1 the requested further evidence.

fgsilva

if you are not from a non-retrogressed, why not put in an EB1. you should get through there.

 

[2006gc]

Fgsilva,
It is good to hear that you have found a good attorney. Good luck.
EB-1 supposedly is harder to get than NIW but this is highly a function of your field and the type of work that you do.
EB1-EA is argueably more difficult to obtain but EB1-OR is relatively straight-forward. However, unlike NIW and/or EB1-EA, your employer needs to sponsor you for this position, and permanent job is crucial.

 

[2006gc]

NIW-Now04,
If you read the AAO decisions, you will find that EB1-EA is extremely difficult to get and highly dependent on the adjudicator's mind-set. I feel NIW is much easier to satisfy, provided the cases are presented well. The third prong is not difficult to address provided one already satisfy simpler criterias set forth in the EB1-EA category.
Also AAO decisions clearly stated that merely meeting three criteria does not guarantee that one will receive approval. The beneficiary has to be recognized among the 'top 1-2%' in the field world-wide and he/she has sustained that recognition evidenced by at least three criterias. Taking a glimpse at the AAO decisions will give some idea on the difficulty of getting this category approved. Many 'extremely qualified' individuals have been denied! I have also seen that some have got approvals quite easily, and this is merely a luck factor. Another major issue with EB1-EA is extensive documentation is required!!

 

[Fgsilva]

Ok. I guess worse case scenario is for me to prepare again the documents for EB1 and pay $195! In fact I had planned to do that originally but decided to be cheap and only send one for NIW, even though the cover letter itemized all the evidence as if it was for EA. And I did fit more than 3 of the required standards (I think I fit like 5 or 6). Maybe that's what the attorney will advise also. Now, if I do go with applying again for EB1 EA can I keep my previous reference letters? They are dated from last year and they are all addressed to CSC. And from what I understand all new I140 should now be submited to Nebraska center or am I confused? Finally for EB1 EA do I still need to address the issue of labor certification or is that specific for NIW?

Thanks again to all for their great advices!

Fgsilva,
It is good to hear that you have found a good attorney. Good luck.
EB-1 supposedly is harder to get than NIW but this is highly a function of your field and the type of work that you do.
EB1-EA is argueably more difficult to obtain but EB1-OR is relatively straight-forward. However, unlike NIW and/or EB1-EA, your employer needs to sponsor you for this position, and permanent job is crucial.

 

[nikkasingh]

GFsilva

you neednt worry about Labor certification in EB1. also you neednt prove third prong that your work is important for the well being of US.

while I agree that theoretically EB1 should be harder to get than NIW but I based by advice on what you wrote at the start of the thread about your qulaifications. If the major journal that you have an article on the cover of happens to be nature/science/cell, and you have 11 other papers, I think you have a decent chance for EB1.

Your RFE already proves that (at least that particular officer) service thinks you are brilliant and do exceptional work but is not so sure whether it is in national interest (in my opinion).

plus if your EB1 gets approved you can use 485 from previous (if pending) NIW case and enjoy prior priority date and respite from retrogression.

 

[Fgsilva]

awesome reply! thanks a lot. I'm quite excited today as I just got a letter from the INternational biographical centre, cambridge, england stating that I was nominated as "International Scientist of the year". This sure will help in my appeal for the RFE. I"m still contacting an attorney as they should be able to address the issues mentioned in the RFE. I could probably do it myself, but at this point it may not be worth to try to save money.
thanks again to all who helped!

This is not a general RFE. You have to take it serious. The fact is that in your initial filing you may not addressed the NYSDOT test the way the officer wants.

Submit evidence to persuasively establish that the national interest would be adversely affected if the beneficiary were required to obtain labor certification from the US Department of labor.
Would a US worker with the same minimum qualifications be able to perform the same occupation and serve the national interest to a similar degree?

Now here you have to address the labor cetification adversely affect national interest. You have to specifically mention your achievements and excellecne in achieving those successful projects. Labor certification process is intended based mainly on educational degrees and qualifications. If a US worker has the same degree as yours, then you and US worker do the project to the same degree. But if you have excellence in your area than a US worker holding minimum degree, then you qualify here. You have to prove your excellence. It can be 1) awards of national standrds, 2) membership in associations, 3) publication about you in major trade journals, 4) patents 5) multiple international citations in journal articles, reviews, book chapters, patents, and websites 6) invited by public institutions and private companies to present your groundbreaking work 7) pointed novel way toward new biomedical applications and treatments, which save the United States billions of dollars per year in healthcare and treatment 8) work of major significance in the filed etc.
Thus you prove that you are a relatively young researcher despite your highly successful and recognized accomplishments and the traditional labor certification route is unavailable to you despite your excellence. The united states is fortunate that you are more than qualified under the NIW criteria based on own merits and outstanding past record.The function of labor certification in ensuring that no qualified Americans are displaced is certainly important to the national interest. However, you have to make clear that waiving labor certification in order to retain you would serve the national interest to a far greater extent. You distinguished himself by being able to achieve success time and time again in research areas. Your work has pointed toward solutions for problems such as... which affect the lives of millions of American and families. Retaining You under the NIW ensures that the United States has excellent opportunities for improving the health outcomes of individual patients and saving on healthcare dollars. (this is just an example. the case varies with your abilities and achievement).

How will the individual alien serve the national interest to a substantially greater degree than other individuals in the field?

You can again argue based on above mentioned excellence.


Submit evidence tha tdemonstrates the alien's specific prior achievement would justify the projected future benefit of the alien to the national interest. Please submit evidence showing that the beneficiary's accomplishments were both (1) important to the beneficiary's field of expertise and (2) imperative to the realization of furhter advancements in the field. Please explain in concise and detailed terms how the accomplishments qailify in these two ways. If there are anyh published material citing the importance of these accomplishments, please submit copies to support your cliams(s)."

This is mainly the second criteria of NYSDOT. You have to prove that your past records project future benefits.
State that you applied your expertise in .. to replicating and understanding the biological processes in the human body. Your interdisciplinary approach has allowed you to achieve highly significant breakthroughs that have resonated with both the US and international scientific communities. I also developed potential applications which hold the tantalizing promise of cures for some of the deadliest and most costly diseases that afflict Americans nationwide. Therefore made a significant national impact, both through your broad research impact and by pointing towards real-world benefits for sufferers of diseases such as .... (again this is just anexample, change according to your area).

Looks like you have to rewrite most of your initial filings. You have enough qualifications to pass through NIW. Do carefully the RFE and you will be fine.

 

[Fgsilva]

Spoke to attorney today but he wasn't very helpfull. I think I'll be contacting another one. He was impressed though that I had done all the work myself. then he goes on saying NIW are really difficult to get! I show him my colleague's application material and he was surprised he got labor certification waved. I tell him he wasn't the first and that, lots of people are getting their NIW aproved. He then suggests that I use my colleague's aproval as an "evidence" since he and I do similar work and work in the same project. Not sure I want to do that, since I'm "molding" my new submission based on my colleague's. Then he says I shouldn't apply for EB1 as it will only "confuse" the immigration officer and it will hurt my case. Again, I've seen many people here saying that they have applied for both and even got aproved for EB1! One good advice he gave me though was that I should re-submit all that I had in the original packet as he claimed that it will make it easier for the immigration officer to not have to go through my old packet. Anyway, this was my update but I decided that I'm going to continue preparing my response to RFE but I'm still seing the other attorney.

Comments and suggestions appreciated!

 

[eb1doc]

Spoke to attorney today but he wasn't very helpfull. I think I'll be contacting another one. He was impressed though that I had done all the work myself. then he goes on saying NIW are really difficult to get! I show him my colleague's application material and he was surprised he got labor certification waved. I tell him he wasn't the first and that, lots of people are getting their NIW aproved. He then suggests that I use my colleague's aproval as an "evidence" since he and I do similar work and work in the same project. Not sure I want to do that, since I'm "molding" my new submission based on my colleague's. Then he says I shouldn't apply for EB1 as it will only "confuse" the immigration officer and it will hurt my case. Again, I've seen many people here saying that they have applied for both and even got aproved for EB1! One good advice he gave me though was that I should re-submit all that I had in the original packet as he claimed that it will make it easier for the immigration officer to not have to go through my old packet. Anyway, this was my update but I decided that I'm going to continue preparing my response to RFE but I'm still seing the other attorney.

Comments and suggestions appreciated!

Now let me make this clear Are you in delima whether you want to apply for Eb1-OR or want to reply NIW RFE. Take my words "do both" and none will effect prospects of other case. No officer goes back as looks at ur old cases.

Not using friend's case as evidence is good idea.don't do that for ur and his sake!!

don't hire this attorney who says "Then he says I shouldn't apply for EB1 as it will only "confuse" the immigration officer and it will hurt my case." We all have applied both and majority get both approved. never heard a case where they have hurt the case.

"""One good advice he gave me though was that I should re-submit all that I had in the original packet as he claimed that it will make it easier for the immigration officer to not have to go through my old packet. """""" u are saying this for RFE or new petition?................not suggested for RFE....for new petition of niw ...it will work ...for Eb1-OR rewrite cover letter well.

all the best!!

 

[Fgsilva]

Hi,

sorry I should have made this cleaer. I want to do both: reply to NIW RFE and apply for EB1-EA (not OR). And yes, I agree with you on not using my friend's case.

As for application material, he said I should put everything that I had used for my original NIW when I'm submitting my response for RFE. Are saying then that I should NOT add the old stuff though when replieing to my RFE? Nothing to do with the possible EB1-EA I also want to file. For that one I already asked you guys' opinion on wheter or not to have new letters.

Yep, I was disappointed with this guy, but, he was referred by a friend, and he was doing me a favor. At least he didn't charge me anything and he even gave me some tabs for when submitting my response!


Tomorrow I"m schedule to see another attorney and I'll keep you posted on what he says.

Thanks for the reply. I'm really glad I bumped into this site because it has been extremelly helpfull!!

Now let me make this clear Are you in delima whether you want to apply for Eb1-OR or want to reply NIW RFE. Take my words "do both" and none will effect prospects of other case. No officer goes back as looks at ur old cases.

Not using friend's case as evidence is good idea.don't do that for ur and his sake!!

don't hire this attorney who says "Then he says I shouldn't apply for EB1 as it will only "confuse" the immigration officer and it will hurt my case." We all have applied both and majority get both approved. never heard a case where they have hurt the case.

"""One good advice he gave me though was that I should re-submit all that I had in the original packet as he claimed that it will make it easier for the immigration officer to not have to go through my old packet. """""" u are saying this for RFE or new petition?................not suggested for RFE....for new petition of niw ...it will work ...for Eb1-OR rewrite cover letter well.

all the best!!

 

[eb1doc]

As for application material, he said I should put everything that I had used for my original NIW when I'm submitting my response for RFE. Are saying then that I should NOT add the old stuff though when replieing to my RFE? Nothing to do with the possible EB1-EA I also want to file. For that one I already asked you guys' opinion on wheter or not to have new letters.

many will agree with me here that in response to RFE USCIS will not entertain resending any content from original packet. At the most you can include some reasoning in coverlettr saying evidence # XYZ from original petition.....

 

[Fgsilva]

And that's exactly how I was doing in my reply letter to them, to just refer to original evidences!! Man, that was indeed a bad attorney to give me that kind of advice!

 

[Fgsilva]

update on meeting with attorney

met with attorney yesterday. He said that I was on the right path by following my friends application when replying to RFE, considering that my friend was successfully aproved. He look over my draft of RFE letter (9 pages so far) and said as long as I am addressing the 3 prongs I should be fine. With regards to EB1-EA he said I should go ahead and submit another application for that category also since it won't hurt my case (as many here have said already!!). Suggested though I should have my reference letters updated. I already contacted all 15 references and got 5 updated. The main problem will be the ones coming from other countries. Thanks again to all for you great help and suggestions. I'll keep you posted when I have an update.

 

[eb1doc]

met with attorney yesterday. He said that I was on the right path by following my friends application when replying to RFE, considering that my friend was successfully aproved. He look over my draft of RFE letter (9 pages so far) and said as long as I am addressing the 3 prongs I should be fine. With regards to EB1-EA he said I should go ahead and submit another application for that category also since it won't hurt my case (as many here have said already!!). Suggested though I should have my reference letters updated. I already contacted all 15 references and got 5 updated. The main problem will be the ones coming from other countries. Thanks again to all for you great help and suggestions. I'll keep you posted when I have an update.

great!
i am glad things are going good!
don't worry letters coming form other countries will not mor ethan 10 days..better than spending time of RFE's later.........all the best.
you will surely make it!