NIW Theory: #3 (What to do with an RFE)

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NIW Theory: #3 (What to do with an RFE) - By Justin Fok, Esq.

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   NIW Theory: #3 (What to do with an RFE) - By Justin Fok, Esq.
   摘自加州大学论坛旧版 (Universities in California Bulletin Board System)  陈丹虹律师  2007-09-10 11:57
Every month we receive many inquiries on how to respond to Requests for Additional Evidence (“RFE”) from NIW applicants. From our experience, it appears that RFE’s are sometimes given at random. It is not uncommon to receive an RFE for a strong case while receiving an instant approval for a weaker case filed at the same time. Receiving an RFE does not mean certain denial for your petition; the approach our office takes to RFE’s has been quite successful. Below are some of the strategies and tactics our office uses to maximize the chances of approval after receiving an RFE:

Four Categories of RFE – Generally, RFE’s can be divided into four categories:

1. Request for additional recommendation letters - For this type of RFE, USCIS will request additional letters of recommendation because the previously submitted letters: a) are from sources that you have had a personal or professional relationship with b) simply state that you are highly skilled or “unique” at your field instead of stating why your work is in the national interest c) are not from “nationally recognized” entities.

Response: To preempt this type of RFE, our office works closely with our clients during the initial document intake. We advise our clients on the type of organizations and authors they should procure recommendations from based on their specific case. Generally, it is a good idea to get at least 2-3 letters from independent experts in the field and from organizations the petitioner has not worked with. Our office also carefully revises each recommendation letter to avoid the common pitfalls listed above and to maximize the impact of each letter.

2. Request for additional evidence on how the national interest of petitioner’s work “outweighs” the national interest of protecting a U.S. worker through the labor certification process - Many of our NIW RFE cases come from self-petitioners, and this is by far the most common RFE we encounter. (Please see NIW Series Installment #2 for a further discussion on the “outweigh” theory). Here, USCIS is seeking evidence of how the Petitioner’s work benefits the national interest more than any other similarly qualified U.S. worker in the same field.

Example: Dr. Brokowski is a research associate at a nationally recognized cancer research university for the past two years. His research focuses on the pathogenesis of a specific form of cancer and from his findings he has discovered a new gene therapy technique that has shown great promise in recent clinical trials. This article was awarded article of the month by a prestigious biology journal. His published works have been cited over 50 times by other researchers and he has been invited to review several articles for a leading biochemistry journal. Dr. Brokowski self-petitioned and received an RFE asking for more evidence of how his work outweighed the national interest in protecting similarly qualified U.S. workers. He retained our firm and we immediately requested two recommendation letters from independent experts that discussed how Dr. Brokowski’s work was a completely novel and groundbreaking treatment methodology for that type of cancer. We also revised the recommendation letters to focus more on the practical applications of his research work to differentiate him from other similarly qualified researchers. Happily, Dr. Brokowski’s NIW was approved in less than two months after responding to the RFE.

3. An RFE with multiple evidentiary requests: This is another common RFE that we receive from self-petitioners. This RFE is usually quite long and contains multiple evidentiary requests on nearly every aspect of the original petition. The petitioner receives this RFE for one of two reasons: either 1) The original petition letter was poorly organized and/or written or 2) the petitioner’s qualifications do not meet NIW standards.

Response: If the petitioner lacks of basic qualifications, there is little that can be done. However, for those petitions that are poorly organized or written it is still possible to receive an approval if the RFE is responded to correctly. For these petitions, our office will essentially rewrite and re-organize the original petition letter, emphasizing the key points that USCIS will be looking for. We will also acquire a new set of recommendation letters from independent experts in the field to compliment the new letter. Additionally, we will also submit additional evidentiary materials that may have been overlooked by the original petitioner.
Please be noted you can only submit new evidence such as publications or citations dated before the submission of original NIW applications.

4. Request to address a specific concern: USCIS will sometimes send a short and specific RFE requesting clarification on a specific concern.

Example: Our office once received an RFE requesting clarification on just one sentence from one of the recommendation letters. We clarified what the author meant, and the case was approved less than one month after submitting the RFE. In our experience short and specific RFE’s have a high rate of approval.

Keeping the four types of RFE’s in mind, here are some general suggestions from our office for responding to any RFE you might encounter:

First, carefully read the RFE. Although simple sounding, this step is probably the number one reason why RFE’s turn into denials. Determine what category your RFE falls into and carefully consider exactly what evidence USCIS requires. You must be responsive to the instructions on the RFE. In order to do this, you must read the instructions precisely.

Follow the directions precisely. If the RFE requests that you procure recommendation letters from nationally recognized agencies and institutions such as the EPA and NIH, then you must do so.

When an RFE requests for additional recommendation letters, how many new letters should you submit? In our experience, 2-3 additional letters should enough to induce an approval. The key point to remember is that your additional letters must be responsive to the criteria set out by the RFE. Two responsive recommendation letters are better than ten unresponsive letters.

Also, our office has found it helpful to submit a carefully crafted response with every RFE that sums up the new evidence and summarizes pertinent points from the new recommendations letters. Although this is never required by the RFE, we have found that adhering to this process has led to a high rate of success. It makes it easier for the adjudicating officer to take in all of the new evidence and it is an excellent way to catalogue your compliance with all of the requirements from the RFE.

As always, jclawoffice.net is committed to providing our readers with the advice and analysis they need to stay informed of even the most difficult aspects of immigration law theory. This is the third installment of a ten part series discussing the essential elements of a successful NIW Petition. Keep checking back for additional installments and new treatises on various subjects affecting you and your immigration issues.

   摘自加州大学论坛旧版 (Universities in California Bulletin Board System)  陈丹虹律师  2007-09-10 11:57