Along the road to immigration, there can easily be hiccups. Simple errors can cause rejection while inadequacies can end up in outright denial. However, there is a middle ground in which the USCIS gives applicants the opportunity to supplement the evidence for their case: the Request for Evidence. If you have received an EB-2 NIW RFE, then this post is for you.
EB-2 NIW Background
As the second preference level for employment-based visas, there are strict requirements to be eligible. Under normal circumstances, you must either have an advanced degree (master’s level or above) or possess exceptional ability in your field, which requires significant documentation and evidence.
If you apply for an EB-2 under either of the above criteria, you will need to have a job offer from a U.S. employer for a position that warrants your advanced degree or exceptional ability. Also, that employer will need to obtain a PERM Labor Certification on your behalf.
To get a PERM, your employer must put out advertisements for your position with the intention of hiring any qualified U.S. workers. This is to avoid having employers take advantage of the immigration system to displace American workers.
However, for many immigrants who wish to get an EB-2, obtaining an employer and a PERM may be either impossible or unrealistic. In these situations, many choose to apply for the National Interest Waiver (NIW). This excuses the applicant from needing a job offer or PERM. Qualified applicants also do not need a sponsoring employer and can self-petition.
There are three main requirements that must be met if you hope to obtain an NIW for your EB-2:
- First Requirement: You need to prove that your work in the U.S. will have a substantial positive impact on the nation’s health, culture, society, technology, education, economy, or business.
- Second Requirement: You will also need to prove that you are uniquely qualified to develop and advance this work. Specialized degrees, work experience, past successes, current progress, and relevant skills will all be taken into account when evaluating this requirement.
- Third Requirement: For this, it must be apparent that the U.S. will “benefit on the balance”. As it stands, the U.S. benefits by enforcing the PERM requirement. You must prove that the U.S. would benefit more by waiving that requirement for your work.
You need to collect the required evidence proving that you satisfy all three requirements and send it in along with your EB-2 petition. Once it is received by the USCIS, it will be examined by an evaluating officer, who will likely make one of four actions:
Petition Approval – the officer approves your petition and you can move onto the next steps in the EB-2 NIW process.
Petition Rejection – the officer makes a preliminary check for the necessary documentation and found that you were either lacking documents or there was incorrect, incomplete, or inconsistent information.
Petition Denial – the officer acknowledges that your information is sufficient, but does not deem you qualified for an NIW
Request for Evidence – the officer would like to see further documentation to support your qualifications, without which your petition will likely be denied.
Types of NIW RFEs
RFEs can come in all shapes and sizes. What your RFE looks like is entirely dependent on your particular case. However, there are some common trends that are seen throughout the cases. Here are four main types of NIW RFEs:
1. Requesting Evidence that Your Work Will Benefit the National Interest
Your petition letter and your NIW letters of recommendation all serve to demonstrate how your work will have a positive impact on the U.S. Namely, your letters should show how your field is important to the interest of the U.S. and how it is national in scope
2. Requesting Evidence that Your Work Will Have a Substantial Impact on Your Field
Your letters of recommendation should also highlight how your work contributes to your field. Your achievements and successes must be shown to be far-reaching and valuable to the field, thus demonstrating that your work will, by the transitive property, positively impact the U.S. The best response to this RFE is to provide more comprehensive letters with more prestige and higher quality.
3. Requesting Evidence that You Will Be More Beneficial to The National Interest Than a U.S. Worker
Here, you must prove that you are uniquely qualified to perform your work. You must also show that having you go through the PERM Labor Certification process would impede your ability to perform your work and so would damage the national interest.
One way that you can show this is by demonstrating that your work is time-sensitive and that a PERM would prevent you from meeting the timeline. Overall, you want to make the consequences of a PERM clear.
4. Specific Evidence Requests
These are usually simple requests for a missing form or overlooked piece of evidence such as patents, published works, or affidavits. If you are unable to produce the requested specific evidence, you may still have your case approved with the help of your attorney.
Top Reasons for an NIW RFE
Here are some of the more common reasons for why you might receive an NIW RFE letter:
Lack of Acceptable Letters of Recommendation
Each NIW petition should be accompanied by recommendation letters that support your qualifications. While there is no minimum or maximum number of letters that you can have, this means that it is up to the discretion of the evaluating officer to determine whether your letters are sufficient.
Your letters should be from distinguished individuals, managers, employers, or colleagues that are familiar with your field of work. However, keep in mind that the USCIS will place greater value on letters from esteemed contemporaries that did not work on your particular endeavor.
Poorly-Argued Petition Letter
Your petition letter is one of the most important aspects of your petition. Simply providing the evidence of your qualification is not enough to convince the evaluating officer. Your evidence must be argued in a light that shows that you are qualified according to immigration law. Because of this, it is almost always prudent to have your immigration attorney draft your petition letter.
Insufficient Evidence of Your Ability to Advance Your Work
This reason, while self-explanatory, tends to be relatively common for an NIW RFE. When filing your petition, you need to make sure that you include evidence such as a copy of a specialized degree, current progress reports, bank statements, or an updated resume. If the USCIS asks for these documents in the NIW RFE, be sure to comply or to submit a partial response if the information is unavailable.
Insufficient Evidence Of Your Past Achievements
A large factor in persuading the USCIS to waive your PERM and job offer requirements is showing that you have been successful within your field in the past. If you have started another similar business or can show that you have exceptional ability through the normal EB-2 requirements, it will go a long way in helping your case. Things that can prove your exceptional ability are:
- A substantial salary reflecting your ability
- Licenses or certifications for your profession
- Proof of 10 or more years of experience working in your field
- Evidence of membership in a prestigious organization that requires exceptional ability for membership
- Publications that highlight your achievements in your field
What to Do If You’ve Received an RFE
Like with any obstacle encountered in the world of immigration law, the first thing that you need to do is bring it to your immigration attorney. He or she can work with you to develop a plan of action in order to optimize your chances of approval.
Responding to an NIW RFE
When the USCIS issues an NIW RFE, you will have a window of time in which to respond. This response must address each issue discussed in the RFE if you hope to be approved. Keep in mind that there will only be one opportunity to respond, so make sure that all required evidence is submitted the first time.
There are three main ways to handle an NIW RFE:
Fully respond – this involves submitting all evidence requested in your response.
Partially respond – this may be necessary if the requested evidence is unavailable or your attorney believes that a partial response is necessary. In most cases, however, submitting some evidence is better than submitting nothing.
Petition withdrawal – this should be a last resort if most or all evidence cannot be obtained.
In some cases, there is simply a missing document that needs to be submitted before a decision can be reached, such as your resume or a copy of your passport. However, in other cases, the USCIS asks for evidence that shows that you are qualified for an NIW under certain aspects of immigration law. In these cases, it is even more necessary to work with your attorney.
Notice of Intent to Deny
There is always the possibility that, instead of an NIW RFE, you could be issued a Notice of Intent to Deny (NOID). You should consider this action a much more serious issue, as the USCIS has deemed you unqualified for an NIW unless redeeming evidence can be submitted. In these cases, your attorney may be able to help you salvage your case.
NIW RFE Processing Time
The USCIS will include the time frame that you have to respond in the NIW RFE letter. Typically, this time frame is between 30 and 90 days, but rarely longer. Once the response has been drafted, it must be submitted and received by the USCIS before the given deadline. Unfortunately, you are not able to use premium processing to expedite EB-2 NIW petitions.
What is the Approval Rate?
The approval rate for an NIW RFE depends on both the officer responsible for evaluating your petition and the attorney that is helping you with your case. Hiring the right immigration lawyer can be the difference between success and failure. VisaNation Law Group boasts a high NIW RFE approval rate and always works to put the client first in all of their cases.
There have been multiple cases in which a client has gotten an approval after only a partial response. This is why it is best not to panic if you are not able to provide all of the evidence requested in the RFE.
If your NIW has been denied after an RFE, then you need an attorney now more than ever to successfully navigate the delicate process of appealing and making legal motions.