刘宗坤律师专栏

近期NIW各类RFE案例及分析

刘宗坤律师  白凯玲律师

近几月，移民局就NIW申请案发放的RFE（Request for Evidence）数量明显增加，尤以TSC（Texas Service Center）为甚。

尽管从法律上讲，本所收到的大部分RFE没有道理，但是按照移民局的要求，申请人仍然必须按时回复。不过，回复RFE后的结果还算令人满意。在本所2007年已经回复的NIW申请的RFE中，已经结案的全部获得批准。另外有些申请案，在回复RFE后，仍然在等待审理。移民局收到RFE答复后，审理时间从一个星期到两三个月不等。

对于如何回复RFE，笔者在其他文章中有所论述。读者可参阅“近期RFE的动向及应对策略”（见http://www.niwus.com/art080227.html）、“如何回复RFE中的错误要求? ”（见http://www.niwus.com/art0023.html）， 以及“移民申请的举证标准及RFE问题”（见http://www.niwus.com/art0022.html）。

纵观移民局的RFE，不外有三类：第一类是模版（generic）RFE。这类RFE内容空洞，往往要求申请人提供证据，证明每一项应该证明的东西，似乎申请人什么证据都没有提交过一样。移民局曾经专门发布备忘录禁止移民官发放这类RFE。但移民局有令不行，某些移民官照发不误。第二类是要求具体证据（specific evidence）的RFE。这类RFE要求申请人提供具体的证据，比如说申请人的文章引用记录等。不过，在很多情况下，移民官因不了解申请人的专业情况或对相关法律不熟悉，会提出一些缺少科学常识或在法律上没有意义的问题。第三类是混合（hybrid）RFE。这类RFE是前两种RFE的混合体，既提出一些空洞的要求，又提出一些具体的问题。

本文从本所近几个月处理过的RFE中选出几件有代表性的案例，以供读者进一步参考。前述三类RFE在下面的案例中均有所体现。这些案例中，有相当一部分是申请人自己向移民局提出申请，在收到RFE后，开始正式聘请我所律师代理申请。

Case No. 1：

Case Type: Eb-2 NIW
Field of Research:  Biochemistry
Major Credentials:
PhD from a Chinese university
Published 7 Chinese and English journal papers
Citations: None
Current position: Postdoctoral Fellow at a US university

Filing Date: March 11, 2007
Filing Center: TSC
RFE Date: August 29, 2007
RFE Response Date: November 9, 2007
Approval Date: November 23, 2007

This is a generic RFE requesting for evidence to prove each of the three prongs for National Interest Waiver as set by AAO in In Re New York State Department of Transportation. In response to the RFE, we submitted three (3) letters of recommendation from independent experts. In the Response Memorandum, we addressed each issue raised in the RFE drawing from the expert testimonies, and argued that the Petitioner/Beneficiary has met the requirements of each prong. To support our  arguments, we provide favorable AAO decisions that are comparable to the facts in our client’s case. The case was approved within two (2) weeks after the RFE response was received by CIS.

Case No. 2:

Case Type: Eb-2 NIW
Field of Research:  Organic Chemistry
Major Credentials:
PhD from a US university
Published 10 Chinese and English journal papers
Citations: approximately 20
Current position: Postdoctoral Fellow at a US university

Filing Date: April 23, 2007
Filing Center: TSC
RFE Date: October 15, 2007
RFE Response Date: December 12, 2007
Approval Date: December 19, 2007

This is a hybrid RFE. In addition to requests for evidence to prove that the national interest would be adversely affected if labor certification were required, the RFE also asked a number of questions that were scientifically insignificant and legally irrelevant. In response to the RFE, we submitted three (3) advisory opinion letters from independent references and other independent evidence such as the Petitioner/Beneficiary’s updated citation record.

In the Response Memorandum, we pointed to the fact that our client’s work has been cited worldwide by independent resources. We also provided AAO decisions regarding the legal significance of independent citations in peer-reviewed publications.  We further analyzed the legal threshold for each prong and argued that the evidence submitted abundantly indicated that the U.S. national interest would be adversely affected if labor certification were required in our client’s case. The case was approved within one (1) week after the RFE response was received by CIS.

Case No. 3:

Case Type: Eb-2 NIW
Field of Research:  Pharmaceutical Science
Major Credentials:
PhD from a US university
Published 6 English journal papers
Citations: approximately 25
Current position: Postdoctoral Fellow at a US university

Filing Date: July 24, 2006
Filing Center: NSC
RFE Date: June 13, 2007
RFE Response Date: August 29, 2007
Approval Date: December 6, 2007

This RFE requests for additional evidence to prove that as of the priority date the Petitioner/Beneficiary had a degree of influence on the field that distinguished him from other researchers with comparable academic and professional qualifications. In response to the RFE, we submitted three (3) independent advisory opinion letters from leading experts in pharmaceutical science and the Petitioner/Beneficiary’s updated citations record. We also presented an AAO decision that specifically addressed the issue of citations in NIW petition. In the Response Memorandum, we analyzed the legal significance of independent citations as found in the AAO decision, and argued that our client’s citation record with 25 worldwide citations has proved his widespread and lasting influence on his field. The case was approved in fourteen (14) weeks after the RFE response was received by CIS.

Case No. 4:

Case Type: Eb-2 NIW
Field of Research: Analytical Chemistry
Major Credentials:
MS from a US university
Published 4 English journal papers
Citations: approximately 20
Current position: Ph.D. student at a US university

Filing Date: March 9, 2007
Filing Center: TSC
RFE Date: August 10, 2007
RFE Response Date: October 19, 2007
Approval Date: November 15, 2007

This RFE requests for additional evidence to prove that the national interest would be adversely affected if an employer were to pursue the normal labor certification process. The RFE does not request for specific evidence. In response to the RFE, we submitted two (2) independent advisory opinion letters from leading experts in analytical chemistry and the Petitioner/Beneficiary’s updated citations record. In the Response Memorandum, we pointed to the fact that a number of scientists in different countries had used our client’s findings as the basis of their own research. We further argued that our client’s prior achievements indicated that he not only would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications, but would also make a greater impact than other highly qualified, experienced, and skilled researchers in his field. Therefore a waiver of labor certification was justified. The case was approved within four (4) weeks after the RFE response was received by CIS.

Case No. 5:

Case Type: Eb-2 NIW
Field of Research: Pharmacology
Major Credentials:
Ph.D. from a Chinese university
Published 6 Chinese and English journal papers
Citations: None
Current position: Research Fellow at a US university

Filing Date: April 9, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 2, 2007
Approval Date: November 21, 2007

This is a typical generic RFE requesting for additional evidence to prove the three prongs for National Interest Waiver (intrinsic merit, national in scope, and justification for waiver of labor certification). In response to the RFE, we submitted four (4) independent advisory opinion letters from experts in pharmacology, testifying the scientific significance of our client’s contributions and how his specific prior achievements as of the priority date had set him apart from his peers. We further submitted two AAO decisions finding that third-party letters should be considered as independent evidence that is valuable as a means to determine whether the Petitioner/Beneficiary’s work has attracted significant attention in the scientific community. In the Response Memorandum, we analyzed the legal significance and relevance of the AAO decisions to our client’s case, and argued that the evidence submitted justifies a waiver of labor certification. The case was approved within three (3) weeks after the RFE response was received by CIS.

Case No. 6：

Case Type: Eb-2 NIW
Field of Research:  Nanotechnology
Major Credentials:
PhD from a US university
Published 9 Chinese and English journal papers
Citations: None
Current position: Postdoctoral Fellow at a US university

Filing Date: January 16, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 1, 2007
Approval Date: November 15, 2007

This is another generic RFE requesting for evidence to prove each of the three prongs for National Interest Waiver. In response to the RFE, we submitted five (5) letters of recommendation from independent experts who had never worked with the Petitioner/Beneficiary but were familiar with his research through his publications. We also submitted evidence to show that our client’s work had been highlighted in printed media as well as on websites. In the Response Memorandum, we quoted previous AAO decisions and argued, among other things, that while the evidence of record does not present the strongest possible case, the documentation on balance was sufficient to warrant approval of the national interest waiver. The case was approved within two (2) weeks after the RFE response was received by CIS.

Case No. 7:

Case Type: Eb-2 NIW
Field of Research:  Chemical Biology
Major Credentials:
PhD from a US university
Published 8 journal & conference papers
Citations: None
Current position: Postdoctoral Fellow at a US university

Filing Date: April 10, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 2, 2007
Approval Date: November 15, 2007

This RFE requests for specific evidence including the Petitioner/Beneficiary’s citation record to prove that his prior achievements had a degree of influence that justified the projection of future benefits to the national interest. In response to the RFE, we submitted two (2) independent advisory opinion letters testifying how our client’s original findings had influenced the field of his expertise as a whole. We further presented favorable AAO decisions and argued that although lacking documentation of heavy citation of our client’s published work, the evidence in its entirety provides ample basis for grant of national interest waiver.  The case was approved in two (2) weeks after the RFE response was received by CIS.

Case No. 8:

Case Type: Eb-2 NIW
Field of Research: Medicinal Chemistry
Major Credentials:
Ph.D. from a US university
Published 3 English journal papers
Citations: 23
Current position: Research Fellow at a US university

Filing Date: December 4, 2006
Filing Center: TSC
RFE Date: August 30, 2007
RFE Response Date: October 16, 2007
Approval Date: October 29, 2007

This is a hybrid RFE. In addition to requesting for additional evidence to prove the third prong for National Interest Waiver, the RFE also gave a number of specific questions seemingly related to the Petitioner/Beneficiary’s work. Most of the questions, however, are legally irrelevant or scientifically insignificant to the petition.  In response to the RFE, we submitted two (2) independent advisory opinion letters from experts who had submitted letters to support the original petition.  In the letters, the experts restated their strong support and discussed some of the issued raised in the RFE. We also submitted AAO decisions addressing the legal significance of independent citations in NIW petition. In the Response Memorandum, we argued, among other things, that our client’s citation record and the strong testimonies from independent experts convincingly proved that he will contribute to the national interest to the substantially higher degree than the majority of his peers. The case was approved within two (2) weeks after the RFE response was received by CIS.