USCIS received a large number of NIW petitions in the summer of 2007. In the past few months, USCIS has issued many requests for additional evidence (RFEs) for these cases. Our firm has noticed this trend, as we have also recently received some RFEs for cases we filed over the summer.

We want to take a moment to let you know that you shouldn’t worry too much about receiving an RFE. Receiving an RFE might feel frustrating or disappointing at first, but if you follow our advice and work hard on your response, we think you’ll end up satisfied with the results. Our firm has lots of experience successfully responding to RFEs, and our rate of approval for NIW RFEs is very high. Based on our experience, we believe that most RFEs can be successfully addressed with the help of an experienced immigration attorney.

Responding to an RFE

Our firm has a high approval rate for NIW RFEs. Furthermore, we frequently obtain approvals even when we don’t have a lot of new evidence to present in our response.

Strong recommendation letters are a key element of successfully responding to an RFE. If you receive an RFE, we suggest that you prepare three to five additional recommendation letters, at least one or two of which should be from independent sources. If it’s difficult for you to find new recommenders, you can reuse some of the old ones; just make sure to update the letter based on what was requested in the RFE.

The guidance of an experienced attorney is another key element in getting an RFE approved. An experienced attorney can help you highlight the strongest aspects of your case and write a strong letter in response to the RFE. The attorney might also cite previous cases where applicants with similar credentials have had their cases approved.

Usually, our RFE submissions receive a positive response within two weeks.

Recent RFE Trend: Citations

We have seen a new trend in the most recent RFEs we have received from USCIS: it has become much more common for them to ask about the number of independent citations of the alien’s work. The idea behind this request is that independent citations show the impact of the alien’s work on his or her field as a whole.

This trend has caused some RFE recipients to worry. They are afraid that if they do not have many independent citations to submit, their cases will not be approved.

Of course, it remains to be seen how much importance will be assigned to citations when the USCIS officers review the responses to these current RFEs. However, in the past, we have observed that even when an alien is not able to provide the specific evidence that an RFE requests, that alien’s case can still be approved based on strong recommendation letters.

So if you receive this kind of RFE, and you don’t have many independent citations, we suggest that you focus on preparing strong recommendation letters. With strong recommendation letters and a response letter from an experienced attorney, your case could probably still be approved.

Common RFE Types

The most common RFE types ask for more evidence to support that the applicant meets one or more of the main requirements for an NIW. In general, our strategy for each of these types of requests is to prepare strong recommendation letters that highlight those particular requirements and a customized response letter drafted by one of our experienced attorneys.

The content of an RFE varies based on each individual case. Still, here are four typical categories of RFEs for NIW cases:

1. Requests for more evidence that the alien’s work is beneficial to the national interest; that the work has substantial intrinsic merit; and/or that the work is national in scope.

This request addresses one of the most fundamental aspects of an NIW case: namely, that the alien’s work actually furthers the national interest of the country in some way.

Our main focus for this type of RFE will be letters of recommendation. In these letters, we will seek to emphasize the importance of the alien’s overall field or specific research topic to the national interest; any national problems that the alien’s work is helping to solve; and/or examples of the alien’s work being applied in beneficial ways.

Example: One of our clients, Dr. Kim*, recently received an RFE that asked him to supply more evidence about the national importance of his work. Dr. Kim was a biomedical researcher who was focusing his research on a specific protein that was significant in infectious diseases.

We worked with Dr. Kim to prepare three new letters of recommendation (two of which were independent) that described the significance of his work to the national interest. The recommenders focused not only on Dr. Kim’s specific work, but also on the heavy costs of infectious diseases—in terms of human lives, health care, and the economy—and how Dr. Kim’s work would help to reduce those costs. Furthermore, Dr. Kim’s attorney made sure to echo these points in his response letter.

We submitted the response to Dr. Kim’s RFE in late December 2007. His case was approved just one month later.

2. Requests for more evidence that the alien’s work has had a significant influence on the alien’s field as a whole, and/or that the alien has a record of specific, prior achievements that justify the alien’s projected future benefit to the national interest.

Evidence that an alien’s work has influenced his or her field shows that the alien’s work has been of high quality, and that it would be reasonable to expect that alien to make more significant contributions in the future.

Recommendation letters will be important for this type of RFE as well. In these letters—particularly those that come from independent sources, rather than friends or colleagues—a recommender can support the claim that an alien’s work is influential by describing how the alien’s work has influenced his or her own. Recommendation letters can also put an alien’s achievements into context: perhaps the alien’s work has solved a longstanding problem or created an innovative new method that will have significant positive consequences.

This request in an RFE is often accompanied by a request for evidence of the alien’s citations. Indeed, journal citations can be a good way to prove that an alien’s work has been influential—especially if the paper that cites the work mentions it in detail.

We can also turn to other sources to establish that an alien’s work has been influential. For example, if the work has been published in a high-impact journal (especially if the alien is a first author), or if a paper has been downloaded many times, that might be sufficient evidence that the work is having an impact on the field as a whole.

Example: Dr. Wong* was an engineer doing research in heating, ventilating, air conditioning, and refrigeration. We filed her NIW in May 2007 and received an RFE in early November. Dr. Wong’s RFE notice did not ask for evidence in one specific area; rather, it was a generic request for more evidence, so we were forced to address all three requirements in our response.

Dr. Wong worked with us to prepare three new letters of recommendation, including one from an independent source, that reviewed her past achievements and emphasized their significance to her field as a whole. Dr. Wong also supplied three citation reports, which showed that her work was influencing other researchers in her field; four new publications; and an award she had won for her work in her home country.

We submitted Dr. Wong’s RFE response in mid-January 2008, and her case was approved within one week.

Example: Dr. Ma*, a chemical engineer, submitted his NIW in late July 2007. His RFE, which he received in late January of this year, asked for evidence of his work’s influence on his field and specifically requested that he submit opinions from independent sources.

Dr. Ma developed an innovative model that was integrated into software that other chemical engineers have used. We are currently working with Dr. Ma to prepare letters of recommendation from users of this software, who have all used and benefited from Dr. Ma’s work. Furthermore, Dr. Ma is submitting a paper that lists him and his software in the acknowledgments.

We are still working on Dr. Ma’s case, but based on our work so far, we are confident that his case has a good chance of being approved.

3. Requests for more evidence that the alien will contribute to the national interest more substantially than an available U.S. worker, and/or that requiring labor certification for that alien would adversely affect the national interest.

One of the main requirements for NIW approval is that an alien be outstanding compared to his or her peers—and more capable of contributing to the national interest than a minimally qualified worker would be. This helps to justify waiving the labor certification process for that particular alien.

To respond to this type of RFE, we prepare recommendation letters that focus on how an alien’s work is exceptional or extraordinary compared to that of his or her peers. The letters might also describe the consequences of requiring labor certification for that alien—for example, if the alien is working on a time-sensitive project where a delay in progress could harm the project’s source of funding.

We would also look for other evidence that distinguishes the alien from his or her colleagues, such as selective awards or memberships.

Example: Dr. Kumar* received a generic RFE for his NIW case. He was a software engineer who specialized in information security.

Dr. Kumar had a strong record of past achievements, including several citations of his publications, which clearly set him apart from his colleagues. We submitted evidence of these citations, along with four new recommendation letters (one of which was from an independent source) that emphasized how exceptional his achievements were and how important his work was to the national interest; in particular, his recommenders cited facts about the costs of past breaches in data security, which showed how much the United States stood to gain from Dr. Kumar’s work.

We filed Dr. Kumar’s RFE response in late January 2008 and received the approval notice less than one month later.

4. Requests for specific evidence, such as citation lists, patents, and publications.

Many RFEs include requests for specific types of evidence. For example, many RFEs that we have recently received have asked for evidence of citations. RFEs might also ask for other types of evidence, like patents, awards, or publications.

We want applicants to know that they shouldn’t be intimidated or discouraged if they receive a request for specific evidence that they do not have. Often, when we have not been able to provide the specific evidence that an RFE requested, we have responded to the RFE with recommendation letters and other evidence, and the case has still been approved.

Don’t Panic!

If you received an RFE recently, you shouldn’t panic. As you can see, our firm has determined several good strategies for responding to an RFE, and the majority of our NIW cases that receive RFEs are still approved within a short period of time. An appropriate response strategy and dedicated help from an experienced attorney will definitely increase the odds of an individual case being approved.

(* To protect our clients’ privacy, all of their identifying information has been changed.)