Niw Eb1a Personal Statement

Q: What is the the Request For Evidence?

A: When your immigrant petition has been poorly documented. Your may get a notice of the USCIS' unfavorable decision, a written statement of the reason for the negative outcome and an explanation of how to appeal. As an alternative, the USCIS may request for additional information or called Request For Evidence (RFE), by sending you a form I-797 and a list of information and documents it needs to determine your eligibility. You must respond to such a request within the specified time period, usually about one month, or your I-140 petition will be decided on the basis of the already submitted documents.

Q: Why does USCIS issues RFE?

A: A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

USCIS adjudication officer uses RFEs to request additional information on the pending application under any of the following circumstances:

1) Something is not clear in a case that you have filed;

2) If there is a document missing; 

3) the officer needs updated information on your case; 

4) the RFE notice was issued by mistake or in error; 

5) the RFE letter was issued for any other reasons the adjudication officer likes.

Q: How to act swiftly in responding to an Request for Evidence

A: When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.

If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.

The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.

Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.

Q: Does an RFE mean that USCIS is about to deny my EB1 Extraordinary Ability petition? Can I simply ignore the RFE request?

A: To process the Form I-140 petition and determine the eligibility for EB1 Extraordinary Ability petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the EB-1A beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.

Normally USCIS will not deny your case, but it can indicate that they aren't sure about the case. But no one likes to receive a RFE notice on the pending case. You can ignore the RFE request only if you really want your case to be denied.

Q: How long does the USCIS officer make the decision after receiving the RFE response?

A: It really depends. It is difficult to tell. Some cases may receive the approval notices in a couple of days after submitting the RFE responses. For some other cases, USCIS officer may make the decision in several months. The important issue is the successful result, not the time period you have to wait for.

Q: Why EB1 Extraordinary Ability is difficult to get approval?

A: The EB1 Extraordinary Ability classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim, and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percent who has risen to the top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and must substantially benefit the United States.

For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even a job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field."

Evidence must be submitted to support a Form I-140 petition for Aliens with Extraordinary Ability. An alien applicant needs to prove that he or she has “extraordinary ability” in a field, and needs to show a major internationally recognized award, or documentation from at least three of ten criteria. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, The EB1 Extraordinary Ability applicant must have garnered "sustained national or international acclaim in the field of endeavor".

Q: For EB1 Outstanding Researcher or Professor petition, Do I have to have a job offer in U.S.? 

A: For outstanding researchers, scholars, and professors who have at least three years of experience, and also have a permanent job offer for research or teaching position, the EB1 Outstanding Researcher or Professor immigrant category is an increasingly popular option to apply for U.S. Green Card.

The EB1 Outstanding Researcher or Professor or immigration category is suit for foreign nationals who are internationally recognized as outstanding in their field. It requires that the alien applicant is a tenured or tenured-track professor at a university, or is employed in a permanent research position at a private company that employs at least three full-time researchers. The alien applicant also should have at least three years of experience in the field.

For EB1 Outstanding Researcher or Professor immigrant petition, the job offer should be in the form of a letter and come from:

1) A U.S. university or institution of higher learning, for a tenured or tenure-track teaching position or permanent research position in an academic field;

2) A department, division, or institute of a private employer, for a permanent research position in an academic field.

Q: What are the typical required evidence for an EB1-Outstanding Researcher or Professor Petition?

A: Evidence must be submitted to support a Form I-140 petition for EB1 Outstanding Professor or Researcher (EB-1B). Unlike the requirement for the EB1 Extraordinary Ability Petition, in which alien applicant must have garnered sustained national or international acclaim in the field of endeavor, the EB1 outstanding professor or researcher petition must demonstrate that the alien is recognized internationally as outstanding in the academic field.

In addition, the U.S. employer should have the ability to pay the alien employee’s offered salary, and the alien employee should be employed in a tenure-track or permanent research position, which means that the alien beneficiary is employed on an continuous basis, without clear employment end date.

Q: How could I prove my extraordinary ability in an EB-1A RFE response?

A: You should prove that you could qualify for an EB-1 Extraordinary Ability immigrant visa in these area:

1) have extraordinary ability in business, science, arts, education or athletics;

2) have sustained national or international acclaim in your field;

3) coming to the United States to work in your area of extraordinary ability.

An Form I-140 application filed for an alien immigrant with EB1 Extraordinary Ability must demonstrate that the alien applicant has a level of expertise that the alien has risen to the top of the field. Evidence must be submitted to support an Form I-140 application for an alien of extraordinary ability. An EB1 Extraordinary Ability application must be accompanied by initial evidence:

a) the alien applicant has sustained national or international acclaim; and 

b) the alien applicant’s achievements have been recognized in the field of expertise. 

Q: Do you think that the regulation standards for NIW petition are somewhat lower than that of EB-1A and EB-1B?

A: For many foreign nationals, the EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are attractive immigration categories, because the immigrant visas are current for everyone in the EB1 categories, and the EB-1A also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field.", and EB1 Outstanding Researcher or Professor requires a "permanent" research or teaching job offer from a U.S. employer.

For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1 applications, the EB2 National Interest Waiver category is a good choice. The regulation standards for NIW petition are somewhat lower than that of EB-1A and EB-1B, and it only requires the "exceptional ability" for NIW. Therefore, the EB2 National Interest Waiver is an attractive immigration category, because it also allows self petition without U.S. employer's sponsorship and even a job offer. No U.S. employer's sponsorship is required for NIW petition, thus an alien immigrant can self-petition the EB2 NIW with the USCIS.

Q: Do I need the "national or international recognition" for my EB2 National Interest Waiver petition?

A: Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which an alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, or the the requirement for EB1 Extraordinary Ability, in which an alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", the applicant for EB2 National Interest Waiver petition is only required to be in an area of substantial merit and national importance, and the applicant's work should benefit the U.S. national interest.

Q: What should I do if I think the RFE notice contains "ridiculous" or "stupid" requests?

A: It did happen or exist. But no matter what is in the RFE notice, you must treat the request seriously and politely respond to the requests in details. Some applicants learned a lesson by putting some strong words in the response letter that could ridicule or humiliate the officer.

Q: Is RFE the same thing as NID (Notice of Intent to Deny)?

A: No, they are two different kind of notices but closely related. If the USCIS adjudication officer has already pretty much decided (made his/her mind) on your pending application not in favor of your, they normally send you an NID (Notice of Intent to Deny) instead of an RFE. This is basically a last-chance opportunity to fix your case and convince them that they should not deny it.

Q: Can my I-140 petition still be approved after the RFE response?

A: Usually, an Request For Evidence is issued when additional evidence is required. An USCIS adjudicating officer could issue a Request for Evidence pertaining to the alien applicant's eligibility. The issuance of a RFE can have a significant impact on the outcome of an I-140 application case. Historically, cases were never denied without an RFE and a chance to respond to any perceived deficiencies. 

When a letter of Request For Evidence is sent out, the petitioner has certain time to respond. Responses to an RFE usually rely on legal arguments to a great extent, in addition to new documentary evidence to satisfy the examiner's requests. Many approved I-140 cases start with a RFE. 

Many cases would receive RFEs, and after submission of additional legal argument, explanation, and evidence, the cases would often be approved. The USCIS is exploring an avenue to reduce the time it takes to process cases and to reduce its case backlogs. When USCIS examiners issue RFEs, it is time-consuming, expensive, and slows the entire adjudications process. 

Q: How could I avoid the a Request For Evidence notice from USCIS for my petition?

A: In practical, USCIS' decisions remain consistent over the past years, and stick clearly to the statute and regulations. In general, USCIS Service Centers are scrutinizing cases carefully. Specifically, there have been Request For Evidences in practice regarding the alien beneficiary's eligibility; contributions in a field; position description and capacity; publications and citations. However, most RFEs are firmly grounded in the statute and regulations. Therefore, it is very important to carefully present the alien beneficiary's eligibility, and presenting a strong petition for the USCIS Service Center to approve.

The best way to avoid the a Request For Evidence is to get your case prepared and filed properly before your case is submitted to USCIS.

Q: What are an USCIS examiner's choices after reviewing an employment-based Green Card petition?

A: For employment-based immigration, the burden of proving eligibility for the benefit sought remains entirely on the petitioner, and the petitioner has to meet the burden. When your petition has been poorly documented, you may get a notice of the USCIS' unfavorable decision, a written statement of the reason for the negative outcome. 

When you file an employment-based Green Card application, the USCIS examiners have three choices: 1) approve the application; 2) deny the application; or 3) request for additional evidence.

Q: What I should do after receiving the RFE?

A: When your EB1 or NIW petition can not be immediately adjudicated, a request for additional evidence will be sent to you from a USCIS Service Center. During the response time period, you may: 1) submit all of the requested evidence; 2) submit some or none of the requested evidence and ask for a decision based upon the record; or 3) withdraw the petition. 

Q: How much time do I have to respond to an RFE? Can I ask for extension of the RFE response time?

A: It depends on each case. Usually from 30 days to 90 days. The RFE notices should tell you how long you have.

No extension of the response time is possible. Also, no interim benefits will be granted during the time waiting for additional evidence to be submitted. If a response is not received within the time limit, the case will be considered abandoned and denied, and the denial may not be appealed. 

Q: I am a retired professor from a university in my home country with many publications, do I have prove that I "come to the United States to work in your area of extraordinary ability" in the RFE response?

A: One basic requirement for EB1 Extraordinary Ability is that the alien applicant should "come to the United States to work in your area of extraordinary ability."

An Form I-140 application filed for an alien of extraordinary ability does not need to be supported by a job offer or be sponsored by an U.S. employer, and the alien applicant can self-petition for the EB-1A application. For a self-petitioned EB-1A application, the alien applicant must demonstrate that he or she will continue to work in the field of extraordinary ability in the United States, and the alien applicant's work should benefit the United States substantially.

There are no standard criteria for what will substantially benefit the United States. In the EB-1A applications, the petitioner must show that the alien will continue to work in the area of expertise in the United States. If USCIS adjudicators are not satisfied that the alien applicant has satisfied the requirements, a Request For Evidence (RFE) notice may be issued by USCIS. Some of the evidence you may submit to demonstrate that you are coming to the United States to continue to work in your area of extraordinary ability includes:

  • Letters from current or prospective employers;

  • Documents evidencing your prearranged commitments (such as contracts);

  • A statement detailing your plans on how you intend to continue working in your field in the United States.

Q: What is the requirement of sustained" national or international acclaim for EB1 Extraordinary Ability?

A: An application for an EB1 extraordinary ability must submit evidence that the alien applicant has "sustained" national or international acclaim, and that the alien applicant's achievements have been recognized in the field. An alien applicant may have achieved extraordinary ability before, but failed to maintain the level of acclaim thereafter. For USCIS to determine whether the beneficiary has the “sustained" national or international acclaim, such sustained acclaim must be continuing without termination or interruption. If an alien applicant was recognized for achievement several years ago, USCIS adjudicators will decide whether the alien applicant has maintained an acclaim level.

On the other hand, a one-time major achievement such as a Nobel Prize, may satisfy this requirement, if the alien has reached the summit of his or her occupation. However, without such a major and international recognized award, the petitioner cannot rely on the alien beneficiary's past achievements to establish the alien's eligibility for EB1 extraordinary ability. The EB-1A regulations also allow the petitioner to submit evidence that the alien applicant has the sustained national and international acclaimed by submitting evidence of at least three of the ten EB-1A criteria.

Q: I received many international awards when I was an athlete. Now as a coach, the RFE for my EB1 Extraordinary Ability application asks the question of "sustained national or international acclaim", how could I reply the RFE questions?

A: It could be difficult to determine if an applicant's intended employment is in the area of extraordinary ability. Some of the cases are those where the alien applicant’s sustained national or international acclaim is based on the abilities as an athlete, but the alien’s intent is to come to U.S. to be employed as an athletic coach or manager.

We all know that competitive athletics and coaching have different sets of skills, and therefore are not in the same area of expertise. But on the other hand, many extraordinary athletes have become extraordinary coaches later. 

If an alien athlete has achieved national or international acclaim, and has sustained that acclaim in coaching or management field at a national level, USCIS may consider the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability, and then may conclude that coaching is in the beneficiary’s area of expertise.

If a beneficiary has an extended period of time to establish the reputation as a coach, beyond the years as an athlete and with the specific facts, USCIS may consider the evidence of the alien applicant’s acclaim as a coach or a manager.

Q: What else I need to know for the RFE response?

A: It is extremely important that the RFE letter requesting evidence be returned with the evidence and that the special mailing envelope provided be used. Failure to do so will delay processing of the case and may result in a denial due to abandonment.

Evidence submitted without the letter and/or proper return mailing envelope will be difficult to match up with the pending case, and may be treated as general correspondence.

Q: Does anyone with an advanced degree qualify for an EB2 immigrant visa?

A: Not every individual with an advanced degree will qualify an EB-2 immigrant visa. The alien applicant must demonstrate that the occupation is a profession. 

The term “profession” is defined as an occupation for which a U.S. Bachelor degree or its equivalent is the minimum requirement for entry into the occupation. These occupations may include architects, engineers, lawyers, physicians, surgeons, and teachers.

Q: What is the real difference between NIW and EB1-A (alien of extraordinary ability) applications?

A: The regulation requirements in EB2 National Interest Waiver (NIW) and EB1 Extraordinary Ability (EB-1A) are quite different, and thus the application preparation is significantly different between the NIW and EB-1A applications. For example, a successful NIW application does not require the alien applicant to "risen to the very top of the field," as required by EB1 Extraordinary Ability application. 

Also, it is possible for some alien applicants to file two petitions such as an NIW and a EB-1A at the same time. There is nothing stated in the law that prohibits multiple filings of immigration visas. Actually, multiple filings may increase the chance of the immigrant visa approval.

After the Form I-140 is approved by USCIS, there is no major difference between the EB2 National Interest Waiver and EB1 Extraordinary Ability classifications for the FormI-485 application to adjust the status later.

Q: What are the Matter of Dhanasar and Matter of NYSDOT that USCIS' Administrative Appeals Office (AAO)  released for NIW petitions?

A: In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition.

For an EB2 National Interest Waiver petition, USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent, or because of exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions, or business.

In the landmark 1998 case of Matter of New York State Department of Transportation  (NYSDOT). USCIS established a framework for evaluating national interest waiver petitions. This EB2 NIW petition case required:

1) the employment is of substantial intrinsic merit;

2) any proposed benefit be national in scope; and

3) the national interest would be adversely affected if a labor certification were required for the foreign national.

In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions, which is stated as:

Under the new framework in Matter of Dhanasar case, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:

1) the foreign national’s proposed endeavor has both substantial merit and national importance;

2) the foreign national is well positioned to advance the proposed endeavor; and

3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Q: What is the the underlying case of Matter of Dhanasar?

 A: In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner:

    * holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems;
    * is serving as a postdoctoral research associate and developed novel models;
    * provided evidence of his publications and other published materials citing to his work;
    * evidence of his membership in professional associations;
    * documentation regarding his teaching activities;
    * letters of recommendation from experts in his field.

In finding that the foreign national petition satisfied all 3 prongs of the new test, it also noted his funding from national science agencies.

Q: Why USCIS vacated the1998 NYSDOT criteria, and enable the criteria for 2016 Matter of Dhanasar case?

A: One of the most productive, often efficient ways to U.S. permanent residence, is through a National Interest Waiver (EB2 NIW), under which a foreign national can receive U.S. permanent residence by showing that his or her employment will serve to the U.S. national benefits. There are two immense advantages to the EB2 NIW immigration category:

1) a foreign national can self-petition for U.S. permanent residence, rather than having to be sponsored by an U.S. employer;
 
2) the NIW petition submission is made directly to USCIS (U.S. Citizenship and Immigration Services), thereby avoiding entirely the recruitment and advertising requirements of the labor certification application process through the Department of Labor.

However, over years, despite the advantages of the National Interest Waiver petition, USCIS immigration examiners have operated under somewhat vague guidance of precedential NYSDOT case, on the adjudication standards for National Interest Waiver petitions. The precedential EB2 National Interest Waiver case of Matter of Dhanasar (AAO, December 2016) provides a more flexible analysis that may benefit many petitioners.

Q: What is the Matter of Dhanasar's first prong of showing "substantial merit and national importance"?

A: For the case of Matter of Dhanasar, regarding the first prong of showing "substantial merit and national importance", the USCIS Administrative Appeals Office (AAO) noted that the alien beneficiary’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. 

It held that the petitioner is not required to show that the alien beneficiary has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for United States.

Regarding whether the proposed endeavor has national significance, the AAO focused on potential prospective impact. It clearly stated that this impact is not to be evaluated solely geographically, but on a broader scale.

Q: What is the Matter of Dhanasar's second prong of "the foreign national is well positioned to advance the proposed endeavor"?

A: Regarding the second prong of the Matter of Dhanasar case, in determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to:

    * the individual’s education, skills, knowledge, record of success in similar areas;
    * a plan for the future;
    * progress made in achieving the proposed endeavor;
    * the interest of other related parties, such as users, customers, or investors.

The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields.

Q: What is the Matter of Dhanasar's third prong of showing "on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification"?

A: Regarding the third prong of the Matter of Dhanasar case, the AAO listed the following factors that may be considered in showing that "on balance it benefits the U.S. to waive the requirements of a job offer and labor certification":

    * in light of the foreign national’s background;
    * whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf;
    * whether it would still benefit the U.S. even if other qualified U.S. workers are available; and
    * whether U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification.

It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.

Q: How to meet the requirements of the Matter of Dhanasar's third prong for a NIW petition?

A: The third prong is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals.

This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. 

Q: What is the standard of “significant benefit in the national interest field“ for EB2 National Interest Waiver (NIW) petition?

A: According to USCIS, an EB2 National Interest Waiver petition should establish that the alien applicant's work in the national interest field should “considerably“ outweighs the inherent national interest in protecting U.S. workers through the DOL's labor certification process. 

The petitioner needs to provide strong evidence to show that the benefit of the alien beneficiary's work and activity could “considerably outweigh“ the national interest in the labor certification process, or the alien beneficiary should serve the national interest “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications.“ 

Q: Why USCIS asked my past record of achievement in the RFE notice of NIW application?

A: The USCIS believes that an alien applicant's past record of national impact in a field justified expectations of future accomplishments. The past record can indicate if the applicant's work already had a demonstrated national impact in his or her native country. This past record of applicant's initiative and dedication to his/her work can help USCIS adjudicators to decide if the applicant will continue to provide major contributions in the field in United States.

Q: What is the role of independent letters of recommendations in the NIW RFE process?

A: Independent letters of recommendations are more important in addressing the issues raised under RFE for NIW, particularly if they are not well articulated in the petition cover letter. A successful outcome can be assured with a well prepared RFE response cover letter, backed by few quality oriented independent letters and copies of relevant evidences.

The references should be well established senior researchers in the fields with high reputation. Only the comments from the independent and highly reputed references are valuable and convincing to the USCIS officers.

Q: How to reply the RFE notice?

A: When an USCIS officer is unable to complete the processing of your application without further information, the USCIS will issue the Request For Evidence. You should read and comply with the RFE request carefully, then submit the evidence to the address listed on the RFE notice. Include a copy of the RFE notice, and place the attached gold sheet on top of your documents.

You must submit the requested information before the deadline indicated in the RFE. Failure to do so may result in the denial of your application. The deadline reflects the maximum period for responding to a RFE. However, since many immigration benefits are time sensitive, you are encouraged to response to RFE request as early as possible, but no later than the date provided on the request.

Q: What are the general requirements for an NIW application in the RFE notice?

A: For an NIW application, the alien applicant's work should be in an area of substantial merit and national importance, and the applicant's work should benefit the national interest. The application should also establish that the beneficiary's work has significantly impacted his or her filed of study.

The application documents should explain what the applicant has done above and beyond performing the routine. The applicant should also have made a significant impact within the field.

To get help for your EB2 National Interest Waiver application, please see our NIW Request For Evidence web page and Complete Do-It-Yourself Package of Request For Evidence (RFE), EB2 National Interest Waiver Petition

Q: I am a Post-Doctor. In the RFE notice I received, USCIS asked the citations of my published papers. How to reply the RFE request of citations?

A: For USCIS to determine the number of citations that you received, you should clarify the number of citations that you received regarding your work, such as: 

1) how many overall citations has the petitioner received? 

2) of these citations, how many citations were for articles the petitioner first-authored? 

3) how many were independent citations, and how many were cited by the petitioner?

You should also explain how you have significantly impacted your field. As a Post-Doctor, you should provide evidence to prove that you are not simply conducted research within your field, but have made some important discoveries.

Q: In my RFE request for National Interest Waiver application, USCIS asked the question of "Substantial Merit" for my current work. How to reply the RFE request of "Substantial Merit"?

A: For an National Interest Waiver application, you should establish that your proposed employment has substantial merit. The evidence should show that your proposed employment is of substantial merit. Your evidence might show that your field of endeavor may:

  • Benefit the U.S. economy;

  • Improve wages and working conditions of U.S. workers;

  • Improve educations;

  • Provide more affordable housing;

  • Improve the environment of the U.S.;

  • Make more productive use of natural resources, or

  • Serve the interests of a U.S. government agency;

Q: For my NIW application, the RFE indicates that "you have not establish that your proposed employment is national importance". How to reply this RFE request? 

A: For NIW application, you should establish that your proposed employment is national importance. You submitted evidence should show that your work will bring benefits to the United States, and you should submit evidence that your contributions will impart national benefits. 

For example, you may submit:

  • copies of your patents and copyrights; 

  • grant proposals; 

  • peer reviewed articles; 

  • performance evaluations for the last five to ten years; 

  • work that has been evaluated in independent journals; and 

  • awards for work in the field. 

Any awards for work in the field must be accompanied by a statement form the institution that granted the award, commenting on the number of awards given, the frequency of the awards, the criteria for granting the award, and the number of individuals eligible to compete for the award.

Q: What is the USCIS' two-part evaluation approach adjudication method?

A: The USCIS' Two-Part Evaluation approach adjudication method applies to EB1 petition and EB2 NIW. The evidence listed in the EB1 or NIW regulations serve only as guidelines for the petitioner. 

For EB-1A, the submitted evidence should establish that the alien beneficiary is nationally and internationally recognized as extraordinary for EB-1A, and have received "sustained national or international acclaim in the field of endeavor".

Simply presenting evidence which relates to three of the listed ten EB-1A criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1A classification, the additional evidence may be requested (Request For Evidence, or RFE)

Q: What is the USCIS' Two-Part evaluation approach adjudication method for EB1 Extraordinary Ability petition?

A: The Two-Part analysis is used to determine whether the beneficiary is an individual of extraordinary ability:

1) First, USCIS determines whether the petitioner has submitted evidence to show that the beneficiary has received a one-time achievement (a major international recognized award); or the beneficiary qualifies under at least three of the ten criteria required for this classification.

2) If the petitioner establishes that the beneficiary has received a one time achievement (a major internationally recognized award), or meets at least three of the ten criteria, we then determine whether the petitioner has submitted evidence demonstrating that the beneficiary

  • has sustained national or international acclaim, and
  • has achievement that have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.

In determine whether the beneficiary has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. A beneficiary may have achieved extraordinary ability in the past, but then failed to maintain a comparable level of acclaim thereafter.

Q: Can a person who holds a master's degree and working for a State Government apply for a EB2 National Interest Waiver (NIW)?

A: It is possible for an alien working for a State Government with a Masters degree to apply for EB2 National Interest Waiver, and it manly depends on the alien's particular achievements and contributions. 

The petitioner should convince the USCIS adjudicators that the alien beneficiary is truly superior to others in the field, and the work is in the national interest, and it will benefit the United States as a whole. For example, a talented individual working on science projects has advanced the science of the field as a whole, and has influenced others in the field.

Q: How difficult is it to have EB2 National Interest Waiver petition approved?

A: The alien applicant for EB2 National Interest Waiver petition should prove the prospective national benefit, and establish that the waiver of the Labor Certification will be in the U.S. national interest. USCIS adjudicators will judge each case's merit individually.

If an alien beneficiary is qualified for the basic EB2 National Interest Waiver requirements, the probability of successful EB2 NIW petition depends largely on the way the case is presented to USCIS. If the evidence is relevant and well presented, and the argument is made persuasively, then the EB2 National Interest Waiver petition case should be approved routinely by USCIS adjudicators.

Q: What are the differences between EB2 and EB2 EB2 National Interest Waiver petitions?

A: For an ordinary EB2 immigrant visa petition case, the alien beneficiary should have an U.S. employer as the immigrant visa petition sponsor, and the employer is the petitioner for the alien beneficiary to obtain a Labor Certification from U.S. Department of Labor, before filing the USCIS Form I-140. The EB2 petition needs to establish the qualification of the alien beneficiary - the alien beneficiary has advanced degree or has exceptional ability. 

For an EB2 National Interest Waiver petition case, the alien applicant can do self-petition by himself or herself, even without a job offer and U.S. employer as a petition sponsor, or can have his/her employer as the petitioner if the alien has a job offer in United States. The EB2 NIW petition should establish the alien's qualifications under both ordinary EB2 category and the qualification of EB2 National Interest Waiver, such as Matter of Dhanasar three-prong test. Therefore, if you do not have an U.S. employer as your sponsorship, or if you do not want through the Labor Certification process, the EB-2 NIW petition is your better option.

Q: As a O-1 visa holder, My Request For Evidence ask for more evidence of "national or international acclaim", and said that O-1 visa does not "automatically establish eligibility" under the EB-1A criteria for extraordinary ability. How to understand the RFE? 

A: Though the prior approval of an O-1 visa petition on behalf of the alien may be a relevant consideration in adjudicating the EB-1A petition, USCIS is not bound by the fact that the alien was previously accorded the O-1 visa if the facts do not support approval of the EB-1A petition; eligibility as an O-1 visa does not automatically establish eligibility under the EB-1A criteria for extraordinary ability. 

Each petition is separate and independent, and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. Moreover, the O-1 nonimmigrant visa includes different standards and criteria for aliens in the arts, athletics, and the motion picture industry. In such cases, there would be nothing inconsistent about finding that an alien in the arts has “distinction” according to the O-1 nonimmigrant visa criteria, but not “national or international acclaim” according to the EB-1A immigrant criteria.

USCIS believe each petition must be adjudicated on its own merits. Previously, some courts have asked USCIS to provide an explanation as to why the alien is not eligible for EB-1A employment-based immigrant visa, if the alien had previously been approved in an O-1 nonimmigrant visa. Therefore, the alien applicant need to meet its burden to establish eligibility for approval of the EB-1A I-140 petition.

Q: My concurrent I-140/I-485 application was denied after RFE response. Without a valid H1 nonimmigrant status, can I refile I-140/I-485 application?

A: Currently, unless I-140 is first approved, the I-485 applicant is unable to change employment even after 180 days of I-485 filing. The denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from reattempting to file the concurrent I-140/I-485 green card application second time. Therefore, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on EAD/AP status.

Q: For RFE response of my EB-1A petition, can I use employer's internal newsletter as "published materials about the alien beneficiary"?

A: The ten criteria of EB-1A petition include published materials about the foreign national in professional or major trade publications or other major media relating to the foreign national's work in the field. For this category, any published material must be primarily about the beneficiary and be printed in professional or major trade publications or other major media with national or international distribution. 

Therefore, the employer internal newsletter may not be an appropriate type of media as "published materials about the foreign national in professional or major trade publications".

Q: I submitted 5 reference letters with my EB1 extraordinary ability application, but the I received a Request For Evidence notice that said my reference letters are "not persuasive". What should I do? ask for more reference letters?

A: Many EB1 extraordinary ability application include contain letters of reference. Certain testimonials written by other experts working in the alien applicant’s field may be submitted as evidence. But the letters of reference should not be the cornerstone of a successful application of EB1 extraordinary ability.

Also, the statements in the reference letters should be corroborated with the submitted evidence. The reference letters should explain why he or she believe that the alien beneficiary is in the EB1 extraordinary ability caliber. If a reference letter merely reiterates the EB1 extraordinary ability definitions, or merely make expansive statements for the beneficiary's accomplishments, this kind of reference letter is not persuasive.

When USCIS evaluates the statements in the reference letter, the relationship between the alien applicant and the reference letter writer is also an important considering factor. USCIS expects that an alien beneficiary in the EB1 extraordinary ability caliber should receive recognition beyond the circle of personal and professional acquaintances. 

To get help for your EB1 Extraordinary Ability application, please see our EB-1A Request For Evidence web page and Complete Do-It-Yourself Package of Request For Evidence (RFE), for EB1-Extraordinary Ability Petition.

Q: How to satisfy the EB1 extraordinary ability criterion of "original" scientific contributions in the RFE notice?

A: To satisfy the EB1 extraordinary ability criterion of "original" scientific contributions, the petitioner should provide evidence of the alien's "original contributions of major significance" to the field. The arguments alone are not sufficient. Although published work and funded research could be "original contributions” to a field. USCIS will check if the published work and funded research is indeed a major, significant contribution to the field. USCIS will determine whether the alien has made original contributions in the field, and whether the alien’s original contributions are of major significance to the field. 

USCIS officers will evaluate whether the alien applicant's work constitutes major, significant contributions to the field. Although funded research and published work may be “original,” this fact alone is not sufficient to establish that the alien applicant's work has "major significance." For example, peer-reviewed presentations or peer-reviewed articles in scholarly journals may have significance of the alien’s contributions to a field, if the presentations or articles have provoked widespread commentary or received a goodly number citations.

Q: What kind of documents do I need to provide to meet the requirement of "beneficiary’s contributions are original and of major significance in the field"? 

A: To meet this criterion, the submitted evidence should show that the beneficiary’s contributions are considered to be of major significance in the field of endeavor. To assist in determining whether the beneficiary’s contributions are original and of major significance in the field, the petitioner may submit:

  • Objective documentary evidence of the significance of the beneficiary’s contribution to the field.
  • Documentary evidence that people throughout the field currently consider the beneficiary’s work important.
  • Testimony and/or support letters from experts which discuss the beneficiary’s contribution of major significance.
  • Evidence that the beneficiary’s major significant contribution has provoked widespread public commentary in the field, or has been widely cited.
  • Evidence of the beneficiary’s work being implemented by others. 



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