Three types of RFEs on a National Interest Waiver petition, and how to respond

The EB2 National Interest Waiver (NIW) petition for a U.S. green card continues to be a popular choice for professionals and entrepreneurs with Masters degrees or above, because there is no requirement for a U.S. employer petitioner nor a set amount of investment.

However, the EB2 NIW is also one of the more subjective categories to apply under, because the criteria for determining who and whose endeavor is “in the national interest” are set out in general wording, and the discretion of the USCIS officer plays a heavy role in evaluating each case.

For these reasons, even in cases where the applicant carefully collects and submits all documents for his or her NIW package, an applicant may receive an RFE (request for evidence). In this post, we provide an overview of the common reasons why an RFE is issued and how to best respond to them.

In a case that ultimately led to approval, a senior IT product developer at a well-known multinational consumer electronics company presented his 20-year experience creating an online TV contents delivery platform and cloud storage service, which led to significant revenues and wide dissemination, which also led to national-level awards. However, the USCIS officer issued an RFE, noting that the petition needed “more specific explanation about Petitioner’s proposed endeavor in the United States.”

In response, we assisted the IT developer to draft a detailed Statement of Proposed Plans, which presented an overview of the existing technology available in that specific industry, and explained the possibility for collaboration with specific U.S. entities, individuals, and institutions in that field. Specifically, the petitioner attached proof of e-mails exchanged with an official at one of these companies discussing potential collaboration. The Petitioner also made sure to lay out, in clear and easy-to-understand terms, how his specific expertise can advance his field in the U.S. as a whole. In addition, he emphasized that the combination of his broad network, high-level expertise, and decades of practical experience in TV cloud content systems design will be difficult to replace through the general recruitment channels. As a result, his application was finally approved.

Another common reason RFEs are issued is cases where the petition failed to convince the USCIS officer that the specific endeavor the Petitioner will perform in the U.S. rises to the level of “national importance.” More so than before, USCIS officers consider it insufficient to simply emphasize the national importance of a particular industry (e.g., the semiconductor industry). Rather, the national importance argument must go to the specific endeavor the Petitioner will personally engage in the U.S.

In another case that ultimately led to approval, a specialist in electric locomotive systems initially presented a proposed endeavor to continue his R&D to develop improved forklift systems (used in logistics, etc.) This did not convince the USCIS officer that the endeavor rose to the level of national importance. In his RFE response, the specialist refined his endeavors to focus on researching and developing more effective transformer designs that also can be used in electric vehicles. These arguments must be combined with substantiation (e.g., industry reports, press releases, government policy announcements) that Petitioner project stands to bring significant positive effects in U.S. citizens’ quality of life, technological prowess, and for large scale economic growth.

The final major reason why RFEs are issued is a lack of specific examples and substantiation on the industry-wide impact of the Petitioner’s past record of work in his or her field. Even if a Petitioner’s research received a high number of citations in academia, an RFE may be issued if the Petitioner does not present evidence that his or her developments have actually been used in commercialized products, used to improve protocols in companies or government institutions, or brought any actual change in operations such as increased revenues, reducing costs, or revision of on-the-ground practices.

In conclusion, the best strategy to convince the USCIS officer in the first instance is to ensure that your proposed endeavor is specific and well crafted, present specific examples of how you advanced your field through 3^rd-party expert letters and your own personal statement, and provide substantiating evidence that documents these examples, thus presenting ample “objective evidence” of your past record of success and the merits of your proposed work in the U.S.

To fully benefit from the advantages of the EB2 NIW category, it is imperative to recognize that each petition must be tailored to the strengths and weakness of each case, and not one petition is the same. We recommend developing an intelligent and effective case presentation strategy with an attorney with broad experience guiding and preparing petitions from a variety of fields and backgrounds.