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Frequently Asked Questions and Answers about Request 
For Evidences (RFE) for EB-1A, EB-1B, and NIW Applications

Request For Evidence graphic

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 intrinsic merit, 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 standard does the USCIS take to determine an EB2 National Interest Waiver case?

A: The USCIS' AAO (Administrative Appeal Office) decision of New York State Department of Transportation (NYSDOT)'s NIW case has established new standards for obtaining EB2 National Interest Waiver petition approval. The AAO held that three factors should be considered when evaluating an EB2 National Interest Waiver petition:

1) Area of substantial intrinsic merit;

2) Proposed Benefit of National Scope, and

3) Significant Benefit in the “National Interest“ Field.

Q: What is the requirement of “area of substantial intrinsic merit“ for EB2 National Interest Waiver (NIW) application? Is it difficult to meet?

A: In the precedent NYSDOT case, USCIS stated that the EB2 National Interest Waiver petitioner must establish that the foreign national's proposed employment is in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor must be established as a threshold requirement. This requirement could be meet if a particular field of endeavor is related to an important national goal of United States.

Q: What activity is within “national scope“ for EB2 National Interest Waiver (NIW) application? Is the requirement difficult to meet?

A: The alien beneficiary's proposed national goal should be served in the national scope, and it is not sufficient to serve in a regional, local, or private interest. The relationship between a foreign beneficiary's activities and the U.S. national goal may not be linked directly for some situations. 

Even these activities may be local in nature essentially, but many research activities and economic activities would be tied together with the U.S. national goal or national economic network in some way, and therefore could benefit the U.S. national interest. In the NYSDOT case, the alien beneficiary's work on one New York State's road and bridge infrastructure met the requirement of “national scope“

According to USCIS, there are some activities that are insufficient for "national scope." For example, some activity's impact on a national level is negligible, such as the services of teachers, pro bono attorneys, and gourmet chefs.

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: Is the NIW application more difficult than before with the NYSDOT case as precedent?

A: While the immigration officers has changed direction in its adjudications after NYSDOT case, the NIWs are still possible for individuals who play critical roles at their companies and have a proven track record of achievement, showing that they are significantly better in their field than their U.S. citizen counterparts. 

The NYSDOT case will stop frivolous NIW cases from being filed. But truly deserving cases, such as engineers working on important technologies and medical professionals doing cutting-edge research, should still be able to obtain NIW approval.

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 NYSDOT 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 intrinsic merit, and the applicant's work should benefit the national interest. Also, the applicant should establish the National Interest would be adversely affected if a Labor Certification was required. 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, and is different from his or her peers who have performed similar work.

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 Intrinsic Merit" for my current work. How to reply the RFE request of "Substantial Intrinsic Merit"?

A: For an National Interest Waiver application, you should establish that your proposed employment has substantial intrinsic merit. The evidence should show that your proposed employment is of substantial intrinsic 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 National Interest Waiver application, my RFE request asks for to "demonstrate that the national interest would be adversely affected if a labor certification were required". How to reply this RFE question? 

A: For an National Interest Waiver application, you should establish that the national interest would not be served if you were required to obtain a labor certification for the proposed employment. You should submit any evidence to establish that the national interest would be affected if you were required to go through the labor certification process. You should demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your service by making the position available to U.S. workers. 

Therefore, you can submit evidence to establish that your past record justifies projections of further benefit to the nation. Your evidence should show that you have influenced the field by acquiring the necessary knowledge or exceptional skills. You should establish that you have a past record of specific prior achievement with some degree of influence on the field as a whole.

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

A: For NIW application, you should establish that your proposed employment is national in scope. You submitted evidence should show that your work will bring benefits to the United States and that the benefits are national in scope, and you should submit evidence that your contributions will impart national-level benefits. Also, you should establish that your ability to serve that national interest to substantially greater extent than the majority of others in the field. 

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: Does the Two-Part Evaluation Approach also apply to EB2 National Interest Waiver petition?

A: The USCIS' Two-Part Evaluation approach adjudication method also applies to EB2 National Interest Waiver Petition. The evidence listed in the NIW regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the "proposed benefit will be national in scope", and the "national interest would be adversely affected if a Labor Certification were required."

USCIS adjudicators will use the Two-Part Evaluation process to evaluate the submitted evidence with a NIW petition. First, USCIS adjudicators will evaluate the submitted evidence to determine which evidence meets the regulatory criteria, by a preponderance of the evidence. Second, USCIS adjudicators will evaluate the submitted evidence together, for the final merits determination regarding the total requirements for the EB2 National Interest Waiver immigrant visa category.

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 NYSDOT 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. 

Q: How to satisfy the "Authorship of Scholarly Books or Articles" in my Request For Evidence notice?

A: The publications must be in peer-reviewed academic journals, preferably those with international circulation. When submitting evidence under this category, the petitioner must demonstrate that the publication record rises above that of the average scholar. One method of doing so is showing that the alien beneficiary’s papers have been widely cited by independent researchers in the field. 

USCIS adjudicators determine whether the alien has authored scholarly articles in the field. By definition, a scholarly article reports original research, experimentation, and discourse. The scholarly articles are written by researchers or experts in the field. USCIS adjudicators also determine whether the publication is a scholarly book, or a scholarly journal with international circulation. The submitted evidence for published material should establish that the circulation is international, and indicate the publication's intended audience. Scholarly articles could include an abstract, a description of methodology, footnotes, endnotes, and bibliography.

Q: How to satisfy the "judge of the work of  others in the academic field" in my Request For Evidence notice?

A: USCIS adjudicators will determine whether the alien beneficiary has participated as the judge of the work of  others in the academic field. The petitioner should show that the alien beneficiary has not only been invited to judge the work of others, but also that the alien beneficiary actually participated in the judging of the work of others in the field. 

Reviewing grants or articles can also satisfy this criterion, if the review request is directed particularly to the alien beneficiary. Generic letters or requests passed down from an advisor or mentor can not be accounted. 

Some of the examples may include: peer reviewing for a scholarly journal, with evidenced of a request from the journal to do the peer review, and any proof that the review was actually completed; or serving as a committee member of a Ph.D. dissertation, which makes the final judgment for a candidate’s doctoral degree, as evidenced by school or department records.

Q: How to satisfy the "association membership" in my Request For Evidence notice?

A: Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. The alien applicant should submit evidence of selective membership criteria along with evidence of membership in the association.

USCIS adjudicators will determine if the alien's membership association requires outstanding achievements in the academic field. The petitioner should show that the association membership is based on the alien beneficiary’s outstanding achievements in the field. 

Q: What kind of documents do I need to provide to meet the association membership requirement? 

A: To meet this criterion, the petitioner should provide evidence to confirms that the association requires outstanding achievements of its members. To assist the USCIS in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit the section of the association’s constitution or bylaws which discuss the criteria for membership for the beneficiary’s level of membership in the association. 

And, the submitted evidence should show that the basis for granting memberships in the submitted association is the beneficiary’s outstanding achievements in the field of endeavor as judged by recognized national or international experts in the field. To assist in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit:

  • Information to establish that the individual who review prospective member’s applications are recognized as national or international experts in their disciplines or fields.
  • The section of the association’s constitution or bylaws which discuss the qualifications required of the reviewers on the review panel of the association.

Q: How to satisfy the "Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field" in my Request For Evidence notice?

A: This criterion is intended for the prestigious awards. It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage, and some degree of prestige must attach to the given award.

USCIS adjudicators will determine if the alien beneficiary was the recipient of prizes or awards. The alien beneficiary should be the receipt of the major prizes or awards, as opposed to his/her employer being the receipt of the prizes or awards.

The considerations for major prizes or awards of outstanding achievement in the field include:

  • the criteria used to grant the major prizes or awards;

  • the number of prize recipients or awardees;

  • any limitations on competitors (for example, an award limited to competitors from one institution may not rise to the level of "major" award in the field).

Q: How to meet the criterion of prizes or awards for excellence in the beneficiary’s field of endeavor?

A: To meet this criterion, the petitioner should establish that the prizes or awards are given for excellence in the beneficiary’s field of endeavor, or that the primary purpose of the prizes or awards was to recognize excellence in the beneficiary’s field. To demonstrate excellence in the field is the basis for the prizes or awards, the petitioner may submit:

  • Documentary evidence describing how the prizes or awards relates to excellence in the beneficiary’s field.

  • Documentary evidence of the criteria used to grant the prizes or awards, including evidence that a criterion for winning the prizes or awards was excellence in the field.

Q: I submitted by EB1 Extraordinary Ability (EA-1A) petition 2 months ago, and then received a Request For Evidence (RFE), which challenges the evidence's "ineligibility"  that I provided with very high standard of requirements. What I should do? Please help!

A: The alien applicants should be aware that approvals in the EB1 Extraordinary Ability (EA-1A) petitions are difficult to obtain. The legal standard requires showing that the alien applicant has reached the very top of his or her field. The legal standard in the EB1 Extraordinary Ability category is high. While this category was intended to apply to a small group of extraordinary individuals, it was not meant to be unattainable.

There are alien applicants who are able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that this extraordinary ability has been demonstrated by sustained national or international acclaim, and that the achievements have been recognized in the field with extensive documentation.

In some EB1 Extraordinary Ability petition cases, additional challenges are applied in this category by USCIS adjudicators, which are going beyond the high standard that is appropriate for the EA-1A category, and creating novel requirements.

USCIS adjudicators have wide discretion in adjudicating the EA-1A petition cases, and the complexity of the evidence presented. USCIS adjudicators sometimes apply heightened legal standards for EB1 Extraordinary Ability petitions to support a negative decision, or a Request For Evidence (RFE)

In such cases, it can be difficult to challenge the ineligibility finding made by the adjudicators, or provide evidence to reply the Request For Evidence. Therefore, it is necessary to carefully analyze the actual legal criteria, and the application of the criteria by the adjudicator to the often highly complex individual facts.

Q: Do I need to get additional reference letters for my response of EB-1A Request For Evidence notice?

A: You should get Additional Reference Letters for your response of EB-1A Request For Evidence notice. The majority of these letters should be from independent experts outside the alien applicant's circle. The letters should evidence the foreign national’s international recognition as outstanding in their field and original scientific or scholarly research contributions. The letters should state that the foreign national is extraordinary and in what ways.

Be sure to include letters from experts in the field who have not collaborated directly with the alien beneficiary, or from "independent experts" in the field. However, it undermines the claim to an international reputation when the peer reference did not previously know the beneficiary, but is writing the letter simply after reviewing his or her resume and publications. Therefore, a combination of letters from collaborators and mentors who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for success.

Also, the reference letters and testimonies, if submitted, must provide a much detail as possible about the beneficiary’s contribution, and must explain, in detail, how the contribution was “original” (not merely replicating the work of others), and how they are of “major” significance. General statements regarding the importance of the endeavors are insufficient.

Q: What are the reference letters from "independent" experts?

A: According to USCIS, the reference letter should come from independent and well-recognized expert, based upon his/her review of the documents that are submitted with the EB1 Extraordinary Ability petition. 

By "independent", the USCIS means an expert with whom the alien application has not worked before - not an employer, colleague, advisor, or client. By "well-recognized", the USCIS means a well-credentialed expert with lengthy experience in the field of endeavor. The experience should include an advanced degree, more than ten years of experience in the field, a lengthy publication and presentation record.

Q: I want to get additional reference letters for my EB2 national interest waiver petition, what should be covered in the additional reference letters?

A: The additional reference letters or recommendation letters for EB2 national interest waiver petition RFE response should indicate that the alien applicant seeking a national interest waiver satisfies the three-prong test of NYSDOT case:

1) He or she seeks work in an area of substantial intrinsic merit: The alien must play a significant role in an area of substantial intrinsic merit, and must not be simply a minor constituent who took part thereof.

2) The candidate's proposed work will benefit the nation as a whole: The alien proposed benefit should be national in scope. The alien must be involved in an undertaking activity that will substantially benefit the United States.

3) The significant benefit derived from the alien's participation in the national interest field should considerably outweigh the national interest in using the Labor Certification process: The National interest would be adversely affected if a Labor Certification were required for the alien. Under a NIW, an alien who seeks an exemption from the job offer requirement must be able to demonstrate that the benefit his or her activity would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the Labor Certification process. 

Q: I submitted the EB2 National Interest Waiver petition aboiut 4 months ago. Now, I received the Request For Evidence (RFE) notice from USCIS. It asks my "past record of specific prior achievement ", and to prove my "ability to serve the U.S. national interest to a substantially greater extent than the majority of others in the field." Please let me know how to response the RFE request? Thank you very much.

A: For EB2 National Interest Waiver petition, the alien applicant should establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner's previous influence on the field as a whole must justify projections of future benefit to the national interest.

Also, the alien applicant should establish his or her ability to serve the U.S. national interest to a substantially greater extent than the majority of others in the field in some capacity, For example, the alien applicant can submit the following supporting documents to meet the requirements:

* copies of 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;
* awards for work in the field.

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

Q: How could you help my RFE response for EB2 national interest waiver petition?

A: If you get a Request For Evidence (RFE) notice for your NIW petition from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your I-140 petition rejection.   

To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for EB2-National Interest Waiver Petition". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of NIW petition, and eventually get your Green Card.

To further help your RFE response, we also provide a Premium Petition Service Program for our customers. Please visit http://www.greencardapply.com/general/premium.htm for more information.

Q: Can I use the experience gained while I am still graduate students for my EB1 Outstanding Professors and Researchers application?

A: For EB1 Outstanding Professors and Researchers application, the alien applicants may use the experience gained while they were still graduate students. These professors or researchers may qualify even if they received their three years of experience while still enrolled in a Ph.D. or MS program, if they had full control over the teaching class. In addition, outstanding researchers may also count their research experience which was gained as part of their education if they can show that their research was “outstanding."

According to USCIS regulation, the requirement of 3 years of experience could be met through a combination of teaching and research experience. Evidence of teaching or research experience should be provided with letters from current or former employers, and should include the name, address, and title of the writer, and a specific description of the duties performed by the alien beneficiary.

To get help for your EB1 Outstanding Professors and Researchers application, please see our EB-1B Request For Evidence web page and Complete Do-It-Yourself Package of Request For Evidence (RFE), for EB1-Outstanding Researcher or Professor Petition

Q: For my EB1 Outstanding Professors and Researchers application RFE response, can I provide a employment job offer as evidence to support the petition?

A: Although a labor certification is not required for the EB1 Outstanding Professor or Researcher classification, the petitioner should provide an employment job offer as evidence to support the petition. The job offer can be a letter from the petitioning employer, such as U.S. university or institution of higher learning, or a private employer, indicting that the employment is a tenured or tenure-track teaching position, or a “permanent” research position.

The offered job position should be a permanent position, which could be either tenured, tenure-tracked, or for a term of indefinite or unlimited duration. For the offered job position, the alien employee will ordinarily have an expectation of continued employment, unless there is good cause for termination.

Q: What is the "permanent job” definition in the EB1 Outstanding Professors and Researchers petition?

A: For a research position, the word “permanent” is defined as “either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.” We know many research positions may be permanent, but not be on tenure-track.

As an example, many research job positions are funded by grant money on yearly basis. Thus, many researchers are employed under the contracts with one year increments. Therefore, if the petitioning employer can demonstrate its intent to continue seeking research funding, and a reasonable expectation that funding will continue, for example prior funding renewals for long-term research projects, such research employment can be considered “permanent” within the EB1 Outstanding Professor or Researcher classification.

USCIS adjudicators will also consider an job offer's circumstances and its benefits. A position that is limited to a specific term can meet the EB-1B regulatory test if the position normally continues beyond the specific term, such as if the funding grants are normally renewed.

Q: I received a RFE letter for my EB1 Extraordinary Ability petition, it talks about "establishing eligibility for the high level of expertise". What does it mean?

A: Meeting the minimum regularly criteria outlined above alone will not establish eligibility for the EB1 Extraordinary Ability immigrant classification. Any evidence submitted should also articulate how the evidence establishes that the beneficiary possesses the required high level of expertise for the EB1 Extraordinary Ability immigrant classification.

Establishing eligibility for the high level of expertise required for the EB1 Extraordinary Ability immigrant classification is based on the beneficiary possessing:

  • Sustained national or international acclaim: In determining 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; and

  • Achievements 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.

Q: For Request For Evidence response of EB1 Extraordinary Ability petition, How could USCIS adjudicators determine the "eligibility for the high level of expertise"?

A: When ultimately making a final decision regarding EB-1A eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the analysis. 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, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has sustained national or international acclaim, and that the beneficiary ‘s achievements have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who risen to the very top of the field of endeavor.

This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.

Q: I received RFE letter for my  EB1 Outstanding Researcher or Professor petition, asking for my publication's citations. How important is the citation for an EB-1B application? 

A: In scientific fields, citations are required in most cases when a researcher uses another scientist's research findings of for his or her own research. These citations are normally not considered to be probative for the alien applicant's outstanding ability in the field. When evaluating citations to an alien’s work, USCIS will evaluate the submitted citations to determine the significance of the alien applicant’s original contribution to the field.

The frequent citations by independent researchers may show the interest in alien’s work, and may serve as evidence that the alien applicant is indeed an authoritative in the field. In some situations, alien’s significant and original contributions in a field can bring the subsequent references and citations.

As an example, consistent references and citations by other researchers for an advanced technology developed by the alien applicant would be relevant to the alien's ability. But other researcher's citations to the alien’s similar research techniques without accrediting any significant findings to the alien applicant may not be probative.

Q: I received the RFE for my EB-1B petition, the USCIS said that "academic degrees are not prizes or awards to satisfy EA1 standard." What do you think?

A: One of the criterion of EB-1B petition is receipt of nationally or internationally-recognized prizes or awards for excellence in the field of endeavor. The academic degrees do not belong to the prize or award category. USCIS stated that degrees are not prizes and that university study is not a field of endeavor. It is a training for future employment in the field of endeavor. 

Q: After long waiting, a RFE from USCIS I received stating that submitted evidence does not establish that the beneficiary qualifies for EB-1A classification. The main problem they found was with recommendation letters. They post such requirement "Is beneficiary considered to be at the same level as the authors of the letters of recommendation?” What should I do?

A: Letters of recommendation are important, but not sufficient for EB-1A petition. You must provide convincing evidences, but not simply in a CV format. You can overcome the RFE by demonstrating the importance of your research, journal papers, citations, patents, etc. You can also ask the referees to write additional letters stating that you are indeed one of the top people in your field.

Q: I need additional recommendation letters for my RFE response. Some people said that these kind of letters should be written by experts themselves based on what they think about the applicants. Do you think that an applicant writing drafts and getting it signed by recommenders is unethical?

A: For EB1 and NIW immigrant categories, reference letters can only be supplemental evidence to documented accomplishments. Reference letters on their own do not carry much weight. The letters for immigration purposes have different requirements from normal recommendation letters for job applications. Recommenders need to be informed of this so they can write appropriate letters.

This is also why we provide template of reference letters - not so one can copy verbatim, but so one can get a general idea of what is required. An alien applicant cannot fake credentials or achievements, since they have to be physically documented in the form of papers, citations and prizes. No one can pretend to be a Nobel laureate in the reference letters or RFE response cover letter, and not have supporting documents.

Q: For my EB-1A application, I submitted my scholarships, fellowships and post-doc awards, but the USCIS' RFE still ask for "nationally or internationally recognized prizes or awards for excellence". Do you think that my awards are recognized nationally or Internationally?

A: For this EB1 extraordinary ability criterion, the USCIS adjudicators' main focus is on the alien applicant's receipt of the award, not the employer's receipt of the award. Also, USCIS will determine whether the award itself can meet the requirement of national or international recognition for excellence. 

To determine the award nature, other considerations include the number of recipients, and if there are any regional limitations on the recipients. For example, if a provincial award limits competitors in one province, this award may not have national or international significance. The other consideration for nationally or internationally recognized prizes or awards is that awards with national recognition may be reported in the news paper or other media. The media reports may not focus on the alien applicant, but there may be some degree of national recognition of the award.

Furthermore, USCIS believes that scholarships, fellowships and post-doc positions are not the "nationally or internationally prizes or awards for excellence". Generally, these scholarships, fellowships and post-doc positions them self could not establish that the alien applicant has achieved sustained national or international recognition in the field. Therefore, some academic, junior athletic, or music awards would not satisfy this criterion also.

Q: To reply the RFE request, do I need to translate my award certification in my home country language? 

A: All non-English language documents must have an English translation for the pertinent parts of the documents that help to establish eligibility. If you would like USCIS to consider evidence that is written in a foreign language, you must submit English language translation for the parts of the document that could help to establish eligibility for the requested benefit. The translator must certify that:

  • The translation are accurate and complete, and
  • The translator is competent to translate from the foreign language into English.

Q: My RFE notice for by EB-1B Outstanding Researcher application said that my several memberships do not require the "outstanding achievements of their members". Is there any thing I could do to fix the problem in the RFE response?

A: To satisfy the membership criterion, the submitted evidence should establish that the alien applicant’s significant achievement in the field is the basis for the alien’s membership in the association. It is not sufficient for this criterion if the membership is based on education level, or is based on years of experience in the field.

To satisfy this criterion, alien applicant's membership in associations should require outstanding achievements of their members, as judged by national or international experts in their fields. Also, USCIS believes that the membership fee payment or an association’s publication subscription is not sufficient for this criterion, because membership in some associations can be a requirement of an occupation, such as union membership or guild affiliation for actors. 

To satisfy this criterion, the petitioner should show that the membership of an association is exclusive, which means that membership is limited only to those who have been attained outstanding achievements in the field as judged by their peers. 

Q: If I get a Request For Evidence (RFE) from USCIS for my I-140 application, does it mean that my application may very likely be rejected? 

A: If your get a RFE notice from USCIS, it is still very hard to predict the final result of your I-140 petition, and it depends on the nature of the USCIS request. For each case, the situation is quite different. In general, with a very careful and complete response to the RFE, a lot of petitions are eventually got approved, but some petitions do get rejected. 

Q: I got a Request for Evidence (RFE) for my I-140 application, does it mean my application is incomplete? 

A: If only the original filing was incomplete, such as missing payment fee or missing an form, you will not get Request for Evidence (RFE), the USCIS would let you know at the beginning. The RFE means that further evidence is required for your pending application, for the USCIS to decide approval or rejection of your application. The RFE does not change the pending status of the underlying application of I-140. 

Q: I plan to prepare my RFE documents. I am a self-petitioner in NIW. My RFE replying documents may be as many as 450 pages, because of several new project reports. Is it a good idea to send big size RFE responding documents?

A: It may not be good idea to send big size documents for RFE replying. The applicant needs to make the size reasonable, but it also depends on how the materials are organized. The well organized documents are not difficult for the USCIS officers to handle. 

We all know that EB1 and NIW petitions are not easy to prepare the documents comparing with other immigration applications. Someone who won a Nobel Prize or was an internationally recognized authority could probably get by with a relatively short submission, most cases would take a more substantial submission. But the applicants also need to remember that quality is much more important than quantity for EB1 and NIW documents.

Q: I got a RFE for my EB-1A petition, it asked me to provide "Evidence of the beneficiary's original scientific contributions of major significance in the field". Can you give me more explanation for this question? 

A: For EB-1A petition, if the USCIS adjudicators are not clear about your contribution in your field, you may get RFE question to provide "Evidence of the beneficiary's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field."

It is not sufficient for the petitioner in EB1-Extraordinary Ability category simply to contribute to the field. USCIS adjudicators will consider whether your work has led to major contribution in the field. They may also consider whether the your work results has been used as a guideline or  by others in the field.

Q: I judged several published papers, what king of evidence should I provide to meet the RFE requests of my EB1 outstanding professor application? 

A: For EB1 outstanding professor application, the submitted evidence should establish that the alien has sustained international recognition in the field of expertise, therefore the petitioner could indicate the significance of the alien's experience in judging the work of others in the field. 

USCIS will determine if the alien applicant has acted as the judge of the work of others in a field of specialization. The petitioner need to show that the alien applicant has not only been invited to judge the work of others, but also actually participated in the judging of the work of others in a field of specialization.

If the petitioner could provide the evidence that the alien applicant has been judging the work of others, the alien's outstanding ability as a judge could satisfy this criterion. For example, peer reviewing for a scholarly journal can meet this criterion, as evidenced by a request from the journal, and accompanied proof that the review was actually completed. 

Q: What king of evidence should I provide to meet the RFE requests of "Original Scientific Contributions of Major Significance in the Field", for my EB1 extraordinary ability application? 

A: To satisfy this EB1 extraordinary ability criterion, 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.

To assist the USCIS' assessment of the alien’s original contributions in a field, USCIS officers will also consider the reference letters from experts in the fields regarding the significance of the alien’s contributions. But only reference letters that specifically indicate the alien applicant’s contributions of major significance to the field and its impact on subsequent work could add value for the EB-1A petition. The reference letters that lack specifics do not add value, and will not be considered to be probative evidence by USCIS.

Q: The RFE letter from USCIS for my EB-1B application asked the question of "outstanding achievement requirement" for my membership of IEEE. Do I have to be a senior member of IEEE to prove my outstanding achievement?

A: USCIS has been challenging the type of membership for long time. Some memberships require outstanding achievements, but not all memberships. For example, you do not have to be elected as a fellow of your professional association to meet this criteria. An associate or senior member of IEEE can still demonstrate the outstanding achievement in some degree. Generally, the IEEE membership is acceptable for USCIS, but this is the area that may require more explanations in the response to the RFE.

Q: I filed NIW application and then got a RFE letter asking for independent letters of recommendations: "Please demonstrate how your achievements are more significant/noteworthy than others in the field and are above that normally attained by somebody at your current level. To establish this you should submit letters from independent witnesses who have not worked with you but are familiar with your impact on the field", I want to know what is USCIS looking for in this case?

A: Clearly as the RFE question, the RFE in your case was quite specific as to what USCIS wanted: an independent letters of recommendations. Independent letters of recommendations are more important in addressing the issues raised under NYSDOT for NIW, particularly if they are not well articulated in the petition statement. A well prepared responding statement backed by few quality oriented independent letters and copies of relevant evidences may win the RFE case. However, for EB-1A petition, even with independent letters, you still need to meet the 3 or more evidentiary standards specifically requested in the regulations.

Q: I received a RFE for my EB-1A application, it asked me to provide the evidence of international recognition. Would "judgment of the work of others" be evidence of international recognition? How about sitting in a thesis committee? Does this qualify under this category? 

A: The "judgment of the work of others" can include many issues, such as supervision and training of junior staff. But the judgment of the work of others may not be evidence of international recognition. It is reasonable that a chemistry professor is expected to supervise students of chemistry as a part of his professorial duties. Therefore, serving on a thesis committee or supervising junior staff is not sufficient in meeting this criteria of the evidence of international recognition.

USCIS always gives emphasis on the comments of experts, since it is impossible to understand the applicant's qualifications by the examiner without such comments. Only judgment of the work of others or published papers do not guarantee the international recognition. However, the applicant may provide several combined evidences as the indication of international recognition.

Q: In my EB-1B petition, I provided my published papers. Now, a RFE notice asked me for the citation information in published materials or in major media. How could the USCIS ask this question?

A: The citations can be counted towards meeting the criteria relating to published materials in major media about the petitioner. USCIS now emphasizes that citations could demonstrate academic honesty and the reactions of other experts to the petitioner articles. It is therefore counted as part of authorship of scholarly articles and achievements.

Q: I filed a concurrent I-140/I-485 application in National Interest Waiver several months ago. Now, I get a RFE letter for my I-140 application, asking for more supporting materials and evidences. Please let me now what will happen for my I-485 application if my I-140 is rejected after the RFE?

A: The concurrent I-140/I-485 filing is supposed to permit the applicant a number of benefits, including availability of work permit card, advance parole for international travel, and similar benefits to the accompanying family members. 

Under the law, the I-485 petition remains intact unless it is denied as separate from the denial of I-140. To prevent the abuse of concurrent I-140/I-485 filing, the USCIS instructed the service centers to deny all the accompanying applications including I-485, I-765, and I-131 simultaneously when the service centers deny the underlying I-140 application. 

Q: Recently, I replied to the RFE questions for my EB-1A petition. Now I called the service center and found out that the petition is under "supervisory review". What is the "supervisory review"? does it mean a denial?

A: It may or may not lead to a denial, it may go to a supervisor prior to a denial being issued. It goes to a supervisor when the officer is not sure of what to do. The case officer wants to a denial going to supervisors first. On the other hand, the supervisor may instruct the officer to approve the case.

Q: I am a Lab manager in a famous university, the RFE notice said that I do not meet the EB-1A requirement of "performance in a critical or leading role for organizations or establishments having a distinguished reputation", How could I rely the RFE request?

A: To meet this criterion, the submitted evidence should indicate that the alien applicant has performed in a leading or critical role in a distinguished organization or establishments. In other words, the provided evidence should establish that the alien applicant has played not just a supporting role, but the organization itself should have a distinguished reputation, or has hosted distinguished productions previously.

To evaluate the submitted evidence, USCIS will examine the alien's position in the organization, and then determine if the alien's job is a leading or critical position, and USCIS will also determine if the organization itself is distinguished organization or establishment. Furthermore, USCIS will evaluate the alien's position to see if the alien's role was leading or critical to the entire organization, not just to a department within the organization or establishment.

If provided documentation about the organization does not specifically refer to the alien's contributions, that kind of documentation goes to the reputation of the organization itself. Therefore, it is not persuasive evidence of the alien's significance of the role played in the organization.

Q: As a director of one department in the company, my salary is much higher than other employees in the company. My RFE notice said that I do not meet the EB-1A requirement of "commanded a high salary or other significantly High Remuneration for Services", How could I rely the RFE request?

A: To satisfy this EB1 extraordinary ability criterion, the petitioner should show that the alien applicant has a significantly high salary or remuneration for his or her services, in relation to others in the same or similar field. For example, if submitted evidence shows that the alien has a significantly higher salary than others at the alien applicant's workplace, it may not be sufficient to establish the alien's outstanding role in the field, if without further and objective additional evidence. 

Also, the submission of U.S. Department of Labor's prevailing wage determination or information for the alien's field may not meet this criterion, if without other corroborative evidence. Because the alien applicant must show that his or her salary or other remuneration is "significantly" higher than that of others in the field, not just simply higher that the "prevailing wage."

The prevailing wage information from U.S. Department of Labor should be accompanied by supporting documentation explaining why the petitioner believes the alien applicant's salary is significantly higher than that of others in the same field. If an alien applicant works in a foreign country, the wage statistics evidence should be based on that country, and not simply converting the salary to U.S. dollars and then be considered high in U.S.

Q: My self-petitioned Outstanding Researcher I-140 was approved and I filed I-485 three months ago. Now I changed my job with a new H1B in exact same field. Are there any risks down the road for I-485 if my former employer is willing to cooperate with any RFE? 

A: The EB-1B I-140 petition is employer sponsored and it is not portable (this is different from EB-1A and NIW). The USCIS adjudicator may regard a change of employer as invalidating the original EB-1B approval.

According to USCIS rule and AC-21, an I-485 applicant may change jobs after 180 days of I-485 approval. But in your case, you do not meet the criteria. It may be possible that the USCIS will ask you to file a new I-140 (It depends on the individual officer). Also, you should not take the risk to ask your former employer to ”cooperate” with any possible USCIS RFE for your current real employment situation.

Q: I have applied for NIW in a self-petition. After I applied it, I received a best paper award in Internet Security field. Now I get a "Request for Evidence" asking for evidence of "how your achievements are more significant than others in the field and are above that normally attained by somebody at your current level?" Since this was awarded after the submission of my I-140 application, will this evidence be accepted by USCIS?

A: It may not be considered directly towards your petition, as you obtained it after submitting the petition. USCIS has consistently cited a precedent case in which the service held that "beneficiaries seeking employment based immigrant classification must possess the necessary qualifications as of the filing date of the visa petition."

But your best paper award may show that you can sustain your acclaim of "your achievements are more significant than others in the field". If your include it in your RFE responding, you need to prove the significance of the award.

Q: I am replying the RFE for my NIW petition now. If my case is denied later after the RFE. Is it worth to try to appeal the case? 

A: Appealing a case after its denial is difficult to get success. For the appeals of EB1 and NIW, most petitioners were not able to overcome USCIS decisions. The USCIS denial decisions are not simply summaries of reasons. They are consistent with established principles in all the cases. They provide a useful guide as to what they are looking for under each criterion.

Q: May a F-1 student visa holder petition for EB2 National Interest Waiver (NIW)? Do I have to wait to apply for the Green Card after my graduation and changing the visa to H-1B?

A: The F-1 international student visa is a non-immigrant visa, but it does not mean that an international student with F-1 visa is not allowed to apply for the Green Card inside the United States. It is true that a F-1 non-immigrant visa student cannot have "dual intent" when applying for the F-1 nonimmigrant visa. However, an non-immigrant visa holder, such as F-1 visa or J-1 visiting scholar visa, can change its "intent" thereafter to receive a nonimmigrant visa in the United States.

Normally, anyone can file an immigration visa petition inside the United States, including the F-1 students, if the alien applicant can meet the qualification requirements in the regulation of EB2 National Interest Waiver. To file a Green Card petition in the U.S., an non-immigrant visa holder can also change its visa type to a nonimmigrant visa such as H-1B or L-1 visa which allows the dual intent.

But if the international student's F-1 visa time is not long enough to finish the degree in U.S. university, it is better to wait to file the Green Card application after the F-1 visa has been extended.

Q: May a Ph.D. student apply for an EB2 National Interest Waiver? What is the success rate?

A: Many Ph.D. students have successfully obtained their Green Cards in the EB2 National Interest Waiver category. Some people may think that Ph.D. students are still under the guidance of professors for their researches, so it is difficult for USCIS to believe that the Ph.D. students' accomplishment in the field is significant, and they are "substantially above others in the field." But actually, the success rate of Ph.D. student petitioning for EB2 National Interest Waiver immigration visa is about the same as other petitioners in this category.

Q: Is EB2 National Interest Wavier (NIW) green card only for scientists and researchers?

A: The EB2 National Interest Wavier green card application is not only for scientists and researchers, but also for people working in other fields. Although many EB2 NIW petitioners are researchers in difference fields of science, the EB2 NIW law does not exclude alien applicants working in other fields. 

In reality, USCIS adjudicators has approved many EB2 National Interest Waiver petition cases to engineers, actors, artists, musicians, painters, movie directors, writers, educators, and entrepreneurs.

Q: If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability for an EB2 National Interest Waiver petition, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?

A: If the standards for exceptional ability do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Comparable evidence can be submitted in support of the criteria listed for exceptional ability. USCIS will consider the totality of the circumstances when reviewing the evidence provided for eligibility of the EB-2 visa classification. When comparable evidence is presented, the alien entrepreneur should explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limit on the type of comparable evidence the alien entrepreneur may submit. USCIS will focus on the quality of the evidence, and how it compares to the regulatory criterion for EB-2 visa classification. As an example, the alien entrepreneur may demonstrate:

1) past achievements in obtaining venture capital funding from reputable sources;

2) past participation in incubators that have high evaluative standards for participation - entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise.

Q: For an EB2 National Interest Waiver petition, how does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?

A: The alien entrepreneurs should discuss which elements - national economy, cultural or educational interest, or welfare of the United States, the entrepreneurial enterprise is claimed to benefit:

1) Example one: the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States;

2) Example two: the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

Q: My EB-1A application was filed by a lawyer, who charged $8900. My RFE asked the question of "sustained international acclaim and extraordinary ability." As you may know, I do not have a Nobel prize like most of us, how could I answer the RFE question?

A: Most applicants in EB-1A category do not have Nobel prize, or something even close to it. For most ordinary petitioners in EB-1A, proving extraordinary ability and sustained international acclaim is not an easy task, but statistics indicate that a lot of petitioners are approved in this category after the RFE.

In the RFE response statement, the applicant needs to explain the significance of the submitted documentary evidences and scholarly articles, and relate to the criteria to prove "sustained international acclaim and extraordinary ability."

Q: I am a singer, how could I provide "comparable evidence" to reply the EB-1A Request For Evidence request?

A: If the standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. The EB1 extraordinary ability provision allows petitioners to submit "comparable evidence" to establish an alien applicant's eligibility, if the above 10 EB-1A criteria do not apply to the alien’s situation or occupation. 

To use the comparable evidence, the petitioner should explain why the alien applicant cannot satisfy at least 3 of the 10 EB-1A criteria, and why the submitted evidence is comparable to that required in the EB1 extraordinary ability regulations. In some situations, one type of comparable evidence may satisfy more than one EB-1A criteria. But there is no comparable evidence for the one-time achievement of a major, international recognized award.

When USCIS evaluates the submitted comparable evidence for EB1 extraordinary ability application, they will consider if the EB-1A criteria are applicable to the alien’s occupation or situation. If not, USCIS will determine whether the provided evidence is indeed comparable to the 10 criteria listed in the EB-1A regulations. 

Q: I filed the I-140/I-1485 concurrent applications, with work authorization cards (EAD) and advance paroles together. I want to know what is the difference of RFE for "additional evidence” and RFE for "initial evidence”?

A: USCIS has confirmed that the procedure for I-140 application is that the Service Center will first conduct an initial review of the I-140 petition. If the USCIS determines that a Request For Evidence (RFE) must be issued, then the RFE will cover any and all evidence. 

If the RFE is for "additional evidence” which is required to assist an officer in making a decision rather than an RFE for "initial evidence” which is required to make a prima facie case. If the RFE is for "initial evidence” which is requested by an officer to determine whether or not the petition/application meets the basic requirements.

Q: My self-petitioned I-140 got approved, and my I-485 is still pending, may I leave my current job?

A: For self-petitioned NIW or EB-EA application, the job change will not affect the pending I-485. The applicants enjoys a much broader flexibility due to the different nature of their petitions. The I-485 petition will not depend on  which employer you work for during the process.

But it does not mean that you can do any job you like after the I-485 submitted. You need to prove and maintain the required qualifications for NIW or EB-EA application. If  you later get a Request For Evidence (RFE) or an interview for the I-485 petition, and you no longer maintain the qualifications set in the original I-140 petition, your I-485 may be rejected.  

Q: I received an RFE from USCIS. The RFE states the usual requirement for EB-1B and to asks to provide independent reference for the fact for "international acclaim as a researcher". It is a surprise for me as I am working at a leading research lab in my field in U.S. for the past two years, since I finished Ph.D. from a university in Germany. I had sent eight reference letters with the I-140 petition from US, Germany and China.

A: The problem with the applicant's reference letters is that they are all from the three places (US, Germany and China.) and written by people whom the applicant already knew, who can not act as unbiased referees for applicant's work. The applicant can try to get reference letter from people whom you met once at a conference, or who reviewed your papers before.

Q: I am a researcher in organic chemistry, self-petitioned I-140 EB-1A case and received a RFE from USCIS. It said that "it is not apparent that you have the level of acclaim required for this visa classification." What is this mean?

A: The applicant has PhD in organic chemistry, and worked a post-doc in one of the top US university for a year and then spent two years in Germany as a Alexander Humboldt Fellow. Now, he is working as a post-doc in US in the medicinal chemistry department for synthesizing anti-HIV compounds.

In the RFE, USCIS officer wants to see the evidence from the categories mentioned in the I-140 application form. The applicant needs to explain the impact of his research both in organic chemistry and medicinal chemistry. 

Q: I am a researcher in Earth Science, self-petitioned I-140 EB-1A case and received a RFE. The RFE asked the question like "how the alien's work is considered original and how it has made a major contribution compared to all others in the field." I have sent all my published 12 papers in national and international journals to CSC.

A: The applicant has PhD in Engineering Physics from US, and now working as researcher in a large company. He has published 12 papers in national and international journals, and got 2 national awards. To reply the RFE, the applicant need to emphasize his original research work in the papers published national and international journals. It should state specifically how his work stands out, the direct role his contributions have had on the field.

Q: I am a researcher in Mechanical Engineering filed I-140 under EB-1A category, and received a letter of RFE from USCIS asking "to provide evidence that you have sustained national or international acclaim and your achievements have been recognized". I think that my petition meets all the USCIS requirements, and do not know how to answer the RFE question correctly.

A: The applicant has PhD in structural engineering with nine papers published in journals and conference publication, and he has reviewed other researchers' work for publication. Also, he provided nine recommendation letters, and he believe his petition was complete in all respects. 

For the RFE questions, USCIS does not only check if the applicant meets all the criteria but also checks if the applicant rises to the top of his or her field. For a successful RFE response, it is very important to show that you are in the top of your field. The USCIS officer wants to see the evidence. 

Q: My Form I-140 immigrant visa application was denied after the Request For Evidence (RFE) response to USCIS. What should I do next? Can I file a appeal of a Motion to Reopen? or file a Motion to Reconsider?

A: A Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.

 If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:

• The requested evidence was not material;
• The required initial evidence was submitted with the petition;
• The request for appearance or additional evidence was complied with during the allotted period, or
• The request for evidence or appearance was not sent to the address of record.

As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration. 

 A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.”  Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.

Q: I received REF for my NIW petition from NSC. I am collecting more recommendation letters from the experts in the field of cancer research. Since I don't have a lawyer, I am not sure if I can open the letters and quote the useful part into my cover letter.

A: The USCIS no longer routinely requires submission of original documents or "certified copies." Instead, ordinary legible photocopies of such documents will be acceptable for filing and approval of petitions and applications." It is not required to keep your reference letters in the sealed envelope. You can even send a copy of the reference letters to USCIS, and kept the original letters.

Q: My EB-1A case was rejected and my appeal was dismissed recently. The letter from USCIS says I can give a motion to reopen the case by providing more information within 30 days. Should I give a motion to reopen the case or should I just forget the whole thing, and try a new Outstanding Researcher application? I have a H-1B status right now, and I am a research associate in a medical school.

A: Generally, do not seeking for a motion. The success rate of an appeal is small, and the success rate of a motion is even less. Since you have filed the EB-1A petition, you should have some new research papers published. It is suggested that he may rewrite his petition and file an EB-1B or NIW application. As a research associate in a medical school, if your job is stable, you may also consider Labor Certification at the same time.

Q: I had earlier received a RFE for NIW. The comments were mostly of a general nature questioning the intrinsic merit of the field. I submitted 3 more reference letters explaining the importance of my work. Now I received a denial notice. A lawyer suggests a motion to reopen before appealing. This lawyer also suggests getting strong statements from my references to reiterate that I am truly outstanding researcher. Any comments about this strategy?

Another point made by USCIS is providing letter from federal agency about the national impact of my work. I provided a letter from a previous reference from NIH, stating that no federal employee can write this representing the agency. It is beyond the policy of such agencies, it is a right answer? I also have a EB-1B application in pending of RFE processing.

A: The applicant has a Ph.D in Chemistry, and now working as a scientist in a pharmaceutical company. He had 11 publications and 7 reference letters from other scientists, professors, previous collaborators around the world. He also has a EB-1B application in pending.

The appeal is a long process, it is better to visit USCIS website first to understand its denial decision and the appeal process to see what they are looking for, and to see how you could rescue your case on substantive grounds relating to the criteria. Also, hiring an experienced attorney may be needed in addressing the technical and legal issues regarding an appeal. It may be be easier to answer the RFE for EB-1B, since NIW has the NYSDOT case and its related questions. It should not be necessarily to affect his pending EB-1B application, since they are in different immigration categories. A person may qualify for EB-1B, but not in an area of national interest.

Q: I recently got an Request For Evidence letter from USCIS office, asking for more evidence of my "original contribution in the field", and reference letter of "independent" and "well-recognized" expert for my original contribution in the field. I am now working at a university as a research associate. How could I get reference letter from independent and well-recognized expert for my original contribution in the field?

A: According to USCIS, the reference letter should come from independent and well-recognized expert, based upon his/her review of the documents that are submitted with the EB1 Extraordinary Ability application. 

By "independent", the USCIS means an expert with whom the alien application has not worked before - not an employer, colleague, advisor, or client. By "well-recognized", the USCIS means a well-credentialed expert with lengthy experience in the field of endeavor. The experience should include an advanced degree, more than ten years of experience in the field, a lengthy publication and presentation record.

Not every EB-1A application case needs the reference letter from "independent" and "well-recognized expert", especially when the alien applicant has Ph.D. degree and a lengthy publication record and several wards, which could distinguish the alien applicant from other individuals in the field.

Q: In my RFE notice of EB1 Extraordinary Ability application, the USCIS officers said that I failed to pass the Part Two evaluation of "demonstrated that the alien applicant is an alien of extraordinary ability". What is the Part Two evaluation?

A: For EB1 extraordinary ability immigrant application, meeting the minimum requirement of initial evidence does not establish that the alien meets the requirements of extraordinary ability. For final merits determination, the evidence's quality will be considered. For example, whether the judging responsibilities were internal, or whether the scholarly articles are cited by others in the field.

In the Part Two analysis, USCIS officers will evaluate the submitted evidence together to make a final merits determination of whether the alien applicant has sustained national or international acclaim, whether the achievements have been recognized in the field, and whether the alien is one of the small percentage who has risen to the very top of the field.

If the USCIS officer believes that the petitioner has failed to demonstrate the EB-1A requirements, the USCIS officer will articulate the specific reasons as to why the petitioner has not demonstrated that the alien applicant is an alien of extraordinary ability.

Meeting the regulatory criteria of EB-1A in Part One alone does not establish that the alien applicant indeed meets the requirements as an Alien of Extraordinary Ability. In part one, USCIS officer will only determine if the evidence objectively meets the regulatory criteria. The issue related to if the alien applicant is one of that small percentage who have risen to the very top of the field, and also enjoys sustained national or international acclaim should be determined in Part Two of the analysis.

Q How could the "Complete Do-It-Yourself Package for Request For Evidences (RFE)" help my RFE?

A: If you get a Request For Evidence (RFE) notice from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence and persuade the USCIS officers to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your I-140 petition rejection.   

To help you replying the RFE, we provide the high quality and case approved Complete Do-It-Yourself Packages for Request For Evidence, for I-140 petition of EB1-Extraordinary Ability, EB1-Outstanding Researcher or Outstanding Professor, and National Interest Waiver.

In each RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letter, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge of how to prepare an efficient, professional, and complete response to your RFE notice, and eventually get your Green Card. 

Q: I recently received a Request For Evidence for my NIW application, with the question of NYSDOT third prong of "whether a foreign national’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process." How could I understand and reply this request in my RFE response?

A: The RFE process creates the opportunity for an alien applicant to emphasize evidence already in the record that the USCIS adjudicator may not have fully considered, to clear up misunderstandings, and to clarify issues and facts. The RFE also give an opportunity for alien applicants to provide additional evidence through the RFE process.

The NYSDOT third prong of EB2-National Interest Waiver petition is difficult to satisfy in light of the USCIS bias toward the Labor Certification process. For this test, the alien applicant needs to prove that the alien’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process in that case. Undoubtedly this test would take into account many factors, most of which would be difficult to objectively measure or quantify.

On the one hand, a researcher who develops a vaccine for HIV would probably outweigh the interest in preserving the job for a minimally qualified U.S. researcher who did not make this discovery. Here, strong testimonial letters are key to a successful RFE response. USCIS requires that a foreign national must present national benefits so great as to outweigh the national interest in preserving U.S. jobs for U.S. workers through the Labor Certification process.

Q: I applied the EB1-Extraordinary Ability petition. I recently got RFE (Request For Evidence) for my petition which said that "the evidence does not demonstrate how your field has changed as a results of your work beyond the incremental improvements in knowledge and understanding expected from valid original research. Additionally, the evidence does not demonstrate that your work has been adopted by many or that your work has led to company investments in new products or processes." It looks like that USCIS used the much strict "Two-Step Approach" for my case. I claimed 3 EB1A criteria: authorship, contribution and review. I meet the requirements of authorship and review, but not the contribution. What should I do? 

A: USCIS has issued a Policy Memorandum for "Two-Step Approach" Form I-140 Petitions Evaluation. This Policy Memorandum provides guidance regarding the analysis that Immigration Service Officers must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for: EB1 - Extraordinary Ability petitions, EB1 - Outstanding Professor or Researcher petitions, and Aliens of Exceptional Ability, including EB2 NIW petitions.

Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor. 

For your case, you need to work on the criterion of academic contribution in your field. A good way is to run a new report of your paper's citation number. You also need to prove that you are one of that small percentage who has risen to the top of the field of endeavor and, and you have sustained national or international acclaim.

Q: I received a Request For Evidence letter today from USCIS for my Form I-140 National Interest Waiver application. What should I do? and does it mean USCIS will deny my application?

A: If you receive a Request For Evidence (RFE) notice from USCIS for your Form I-140 immigrant visa application. It does not mean that the USCIS will deny your application certainly, but it only means that the USCIS adjudicator for your case needs additional information from you to make a right decision for your application.

An USCIS adjudicator can deny an immigrant visa application without even issuing a Request For Evidence (RFE) notice. Therefore, if you receive an RFE request from USCIS, it means that you have a chance to provide additional documents to USCIS to correct your deficiency and convince the adjudicator again to approve your application.

Thus, you need to make sure to reply each request in the RFE notice completely, and submit your response to USCIS before the deadline indicated in the RFE notice. If you do not respond the RFE requests or respond it after the deadline, USCIS may determine that you have abandoned your application and then deny your application.

Q: What id the Notice of Intent to Deny notice from USCIS?

A: A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.

If your EB-1A petition is denied by USCIS, you can file an EB-1A petition again, or file in other categories. The immigration law does not restrict the time you can file an EB-1A petition again after the rejection of your previous EB-1A application. A previous rejected EB-1B petition does not bar you from submitting another EB-1A petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.

Q: I am an researcher in chemical engineering. I received a RFE (Request For Evidence) letter form USCIS for my EB2 National Interest Waiver petition recently.  It asks for evidence of my "wide effect on entire field." How to reply this kind of RFE request?

A: When an USCIS adjudicator is unable to complete the processing of an EB2 National Interest Waiver petition without further information, it will send out a Request For Evidence notice to ask required evidence. The alien applicant should read and comply with the request carefully, then submit the evidence to USCIS, and including a copy of RFE letter and place the attached gold sheet on top of the submitted documents.

For Form I-140 petition in the EB2 National Interest Waiver category, the alien applicant should be a member of the professions holding an advanced degree or an alien of exceptional ability, and the petitioner must establish that the national interest would not be served if the petitioner was required to obtain a labor certificate for the proposed employment.

If the alien applicant is a researcher, the petitioner should submitt evidence establishing he or she authored several scientific publications. The petitioner also submitted reference letters from individuals working in his or her field of specialty attesting of the significance of his or her work.

The submitted evidence should establish that the petitioner's work has yet had any wide effect on his or her entire field. While adding to the overall body of knowledge in a given field is important, it also should establish that the petitioner is eligible for national interest waiver.

Also, the petitioner must establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner' previous work influence on the field as a whole must justify projections of future benefits to the national interest. Reference letters without any independent and objective evidence would not suffice to establish prior achievement.

Q: I applied the EB1 Extraordinary Ability Green Card application three months ago in the USCIS Texas Service Center. Now, I got a Request for Evidence (RFE) letter, asking for the evidence question of my reviewing articles for a journal. Do you think this is because that the journal is not the highest ranked journal in my field?

A: USCIS Service Center often issues the Request for Evidence in EB1 Extraordinary Ability petitions with respect to the criteria of "judging the work of others." USCIS examiners question the alien applicant's work in acting as a reviewer for scientific journals, if the journals at issue were not the highest ranked journals in the field. Under the law, serving as a referee for scholarly, peer reviewed journals meets the "judging the work of others" criteria, even if the journal is not the highest ranked journal.

Normally, USCIS examiners may ask for "documentary evidence for selection of judges in panels/referees in journals." The petitioners should get documents from the editors of the journals. If the alien petitioner was asked to review any articles for the journal, he or she can ask a letter as evidence from the editors or associate editors.

Additionally, the editors typically send out review decision letters to reviewers that they influenced the decision or outcome of the review. They may say that the decision to publish or not publish was made based on reviewer's recommendation. Such letters would play an important role for the RFE response also.

Q: I recently received a Request For Evidence (RFE) from USCIS for my EB2 National Interest Waiver application. USCIS asked all questions I provided before in the initial NIW petition cover letter and supporting documents. I am not sure if they lost my EB2 NIW package or some documents. Please see my attached RFE notice and let me know how I could reply it. Thank you very much!

A: It has happened to some alien applicants that USCIS lost the supporting documents for Form I-140 petitions based on EB2 National Interest Waiver category. Thus, there is a small chance that USCIS may lost the petition package.

However in some cases, we do see that USCIS indicates in an RFE notice: "the petitioner appears to be part of a talented team doing research that could be of national interest. The team is just one of many that are working on the same type of research," which indicates USCIS actually know your qualifications.

In an NIW petition or RFE response, the alien applicant should address all the prongs for EB2 National Interest Waiver application by quoting the relevant laws and addressing each of them separately, which means the following prongs issued in the NYSDOT case:

•  it must be shown that the alien seeks employment in an area of substantial intrinsic merit;

•  it must be shown that the proposed benefit will be national in scope;

•  the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.

The NIW applicants should show that the alien's ability to serve U.S. national interest is significantly above the available U.S. worker with same minimal qualifications, and it should show that the alien has a past record of contributions to areas of national interest justifying future benefit to national interest. The alien applicant should address each of the prongs separately, and established how you satisfy these requirements.

Q: How to Assemble and Send My RFE Response to USCIS?

A: Before sending your Request For Evidence (RFE) response to United States Citizenship and Immigration Services (USCIS), you should make a duplicate copy of the USCIS' RFE notice, and save it for your records, because the original RFE notice should be the first page of your RFE response packet.

After receiving your RFE response packet, USCIS will scan the RFE notice and forward it for further processing. Therefore, if you do not include the RFE notice, or if it is not on top of your RFE response packet, you can expect further delays for your Green Card application process.

Also, you need to write a response cover letter that clearly outlines the contents of your submission, and it should reply each of the RFE requests in detail. The cover letter should be organized very similarly to the RFE requests, so that you can show the USCIS adjudicator handling your petition case that you provided all of the requested information. You should also make copies all of the documents that you send to USCIS, and save them for your records.

The RFE notice should include the USCIS address to which your RFE response should be mailed. You should make sure that you mail the RFE response to that USCIS address, and not any other USCIS address to which you may have sent documents before.

It is better to send your RFE response via priority mail with delivery confirmation, so that you have proof that you complied the USCIS requirements with the deadline.


 

 


More Articles about Request For Evidence (RFE) Response Process
What Is Request For Evidence (RFE) for Green Card Petition
RFE Regulations and Issues for Request for Evidence
Typical Requests and Questions Asked in RFE Notice
How to Prepare RFE Response for EB1 Extraordinary Ability 
How to Prepare RFE Response for EB1 Outstanding Researcher 
How to Prepare RFE Response for EB1 Executive / Manager 
How to Prepare RFE Response for National Interest Waiver  
How to Prepare RFE Response for L-1A Visa or L-1B Visa 
Frequently Asked RFE Questions and Answers for EB-1C, L1 Visa
William's Answers for RFE Response Questions
USCIS Memorandum #1 on Requests For Evidence
USCIS Memorandum #2 on Requests For Evidence
Do-It-Yourself Packages for RFE of EB-1A, EB-1B, EB-1C, NIW, L1 Visa
Request For Evidence (RFE) for Green Card and Visa Application
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