As many of our readers are aware, our office has observed a sharp increase in the number of Request for Evidence letters (RFE’S) issued for EB-1A, Extraordinary Ability Petitions. To make matters even worse, we have also recently observed a trend for the USCIS to issue Notice of Intent to Deny letters (NITD’s) as opposed to just a normal RFE. Thankfully, there appears to be little substantive difference between an NITD and an RFE letter, but the title “Intent to Deny” can certainly add more stress to an already stressful process for the petitioner.
Substantively, these new NITD’s and RFE’s are particularly onerous because nearly all of them refuse to recognize even one of the three required elements necessary for EB-1A approval. At first, responding to an NITD or RFE may seem insurmountable, with a denial appearing imminent. However, our office has successfully responded numerous times to both types of letters, using the same general strategies outlined below. To illustrate the typical path to approval, we will use one of our recent cases as an example:
Petitioner received an NITD 8 months after submitting her EB1A case. She was a genetics researcher who claimed to meet 3 of the 10 EB-1A criteria, specifically:
To answer this NITD, our office had to creatively resubmit the evidence in a different manner to convince the adjudicating officer that Petitioner did indeed meet the requisite criteria for EB1A approval.
First, for “evidence as a judge of the work of others” we submitted a letter from an editor of the peer-reviewed publication that Petitioner reviewed for. The editor discussed how he chose Petitioner based on her expertise in field and listed the criteria they used to select her. Additionally, we were able to show the hierarchy of the reviewer board she served on at an international conference to demonstrate that she was a senior level reviewer.
Second, for “original contributions” we tied each contribution directly to the article that first discussed the discovery, and demonstrated the high citation count to each article. This was used specifically to address the RFE request for “objective evidence of significant contribution.” It is here with the “original contributions” prong that we can be the most creative. For example, in addition to the citation counts in this case we also included the complementary emails Petitioner received after publishing one of her more important articles.
Finally, for the “authorship of scholarly articles in the field” we conducted an in-depth analysis of each of the journal publications she published in, and demonstrated that she was among the top few articles published in those journals by comparing her citation count to the other articles published in that journal the same year.
Similar to our other cases, within 3 weeks of submitting the NITD response, we received the approval for this case. In fact, most of our EB-1A NITD or RFE responses are approved within 1-4 weeks of submission. Even though it may be disheartening to receive one of these overly stringent NITD’s or RFE’s, our experience has shown that with a bit of creativity with the response, a petitioner can indeed successfully respond, and receive an approval in a relatively short amount of time.
For questions or comments regarding this article, please email Attorney Fok at: firstname.lastname@example.org