Arguing Only the Strongest Points in an RFE Response

One of the most effective strategies for responding successfully to a Request for Evidence (“RFE”) is to argue only the strongest points of a beneficiary’s case rather than dilute the response by arguing the weaker portions of the case.  We have used this strategy effectively for many of our RFE responses and it has continued to be a highly successful method for us.  Using one of our most recent EB1B cases as an example:

This EB1B beneficiary was a cancer researcher working for a private research institution who submitted his case under Premium Processing.  We argued 3 of the 2 required criteria which were: author of publications, original contributions of major significance, and judge of the work of others.  We felt that the beneficiary strongly qualified under all 3 criteria; however, shortly after submission, we received an RFE challenging two of our claimed criteria: 1) original contributions and 2) judge of work of others.  Knowing that for this case, “original contributions” would be more difficult to prove because of a lack of additional evidence, we focused our efforts in demonstrating that the beneficiary’s work as a “judge of the work of others” was indicative of his status as an internationally outstanding researcher.

The beneficiary had reviewed 6 times for 4 different peer-reviewed journals.  While this was not a great number of reviews, we concentrated our arguments on the quality of the journals he reviewed for.   First we showed that three of the four journals he reviewed for were ranked in the top 20 journals in his field.  Additionally, we argued that the high impact factor for these three journals also demonstrated the prestige of the journals and thus his impact on the field.

The case was approved 9 days after submitting the RFE response.

We were able to get this rapid RFE approval because we elected not to pursue the “original contributions” argument since there was no new evidence to present.  Instead, we strategically focused our efforts on “judge of the work of others” the stronger of the two criteria.  While we could have re-argued “original contributions” with the same evidence that we submitted previously, in practice, we have found it more effective to focus primarily on the strongest portions of the case for the RFE response rather than inundate the response with arguments that have already been made.  (This is something we see in many of the RFE denials that we have analyzed.)  As the above example demonstrates, sometimes it is better to sacrifice the weaker part of the case so that the spotlight can be placed squarely on the beneficiary’s strongest arguments.


For questions or comments regarding this article, please contact attorney Fok at: jfok@jclawoffice.com

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