EB2-NIW  FILING ASSISTANCE

WHAT IS RFE
The USCIS Request for Evidence (RFE) is a notice issued by the United States Citizenship and Immigration Services (USCIS) to an applicant or petitioner when additional evidence or information is required to make a decision on their immigration application or petition.

When reviewing an application or petition, if the USCIS adjudicator determines that the initial submission does not provide sufficient evidence or clarification to establish eligibility or meet the requirements, they can issue an RFE. The RFE outlines the specific information or documentation that is needed to further evaluate the case.

The RFE typically provides a deadline by which the requested evidence must be submitted. If the applicant or petitioner fails to respond to the RFE within the given timeframe or does not provide the requested evidence, it can lead to a denial of the application or petition.

It is important to carefully review the RFE, understand the requirements, and provide a thorough response with the requested evidence to increase the chances of a favorable decision. If there are any uncertainties or difficulties in responding to the RFE, it is advisable to consult an immigration attorney or qualified professional for guidance.

An RFE is a notification from USCIS that the adjudicating official does not consider they have sufficient information to make a decision on the application.

An RFE allows you to cure or clarify any issues by presenting additional evidence.

It is not a refusal of the petition, but it gives a clear outline of further evidence required to convince the adjudicator that all eligibility criteria are satisfied in your application for the EB2-NIW Green Card category.

The adjudicator outlines the evidence required that you are eligible under the EB2 criteria as a professional holding advanced degree or exceptional ability. Or further evidence to prove you are eligible for the NIW (National Interest Waiver) using the 3-prongs in the Dhanasar framework:

1.  The proposed endeavor has both substantial merit and national importance. 
2.  You are well-positioned to advance the proposed endeavor.
3. On balance, it would be beneficial to the United States to waive the requirements of a  job offer, and thus the labor certification.

Under current guidance, adjudicators have wide discretionary powers to deny an application without first having to issue an RFE or even a NOID. As such, it’s important to take full advantage of the opportunity to provide the requested information within the deadline.

Avoiding an I 140 denial

The RFE will identify the specific issues to be addressed in your case. Ensure you work closely with these, providing relevant and comprehensive evidence to resolve the concerns raised and potential objections to approving the petition.

Common areas for further information include inconsistencies in the information provided. Your Cover/Petition Letter I 140 will be cross-checked. Any inconsistencies will be scrutinized after all you are claiming to be a professional with an advanced degree/exceptional ability that belongs to the top tier in your field of endeavor and the adjudicator seek clarification. If the adjudicator spots an error on the cover /petition letter/ ETA 750B when filing the I 140, this could impact your petition.

The adjudicating officer will be looking to verify that the petitioner qualifies for the requested classification and that it qualifies you under the visa requirements. The burden is on the petitioner to show evidence of the eligibility of the role and the worker in meeting the EB2 requirements.

For example, issues arise if the applicant’s education and qualifications are not evidenced sufficiently to show the required standard has been achieved. To be eligible under the EB-2 route, the position must require a Master’s degree, or the foreign equivalent, or a Bachelor’s degree, or the foreign equivalent, plus five years of progressive experience as a minimum for entry into the profession. The detail in both the ETA 750B and I 140 must comply with this. Qualification or experience anywhere below this will not be sufficient. The evidence must support that the worker attained this standard as of the date of filing the labor certification.

Take nothing for granted and make no assumptions about the adjudicator’s knowledge or understanding of the role or your qualifications. Take to ensure you are providing sufficient evidence that the role and worker comply with the rules.