 Imagine your excitement when you finally receive mail from the United States Citizenship and Naturalization Service (USCIS). Then think of how crestfallen you might feel when you find a Request for Evidence (RFE) letter inside the envelope.
Receiving an RFE letter can be extra frustrating if you have already been waiting months for some sort of response from USCIS on your case. Nevertheless, responding to an RFE can be an opportunity to make sure that your petition is approvable by a USCIS officer. What’s an RFE? Foreign nationals who have never heard of an RFE should consider themselves lucky. If you “Ask Emma” about them on the USCIS website, here is what she will say: "A request for evidence (RFE) is made when an application or petition is lacking required documentation (initial evidence), or the officer needs more documentation (additional evidence) to determine an applicant's eligibility for the benefit sought. We may send you a request for evidence at any stage of our review. The request will indicate what evidence or information is needed for us to fully evaluate your application or petition. The notice will explain where to send the evidence and will give the deadline for your response. Your application or petition will be held in suspense during that time. If you receive a request for evidence and have questions about what you need to submit, you may call our USCIS Contact Center at 1-800-375-5283." So, basically, an RFE is the Department of Homeland Security’s way of making sure that they have everything they need to approve a case. However, sometimes, an RFE can be a stall tactic on the part of USCIS. REQUEST FOR EVIDENCE DURING PREMIUM PROCESSING Certain immigration petitions and applications, such as for the EB-1A extraordinary ability green card and the E-2 treaty investor nonimmigrant visa allow applicants to submit Form I-907 to request premium processing. Paying an additional $2,500 for premium processing means that a USCIS officer must “act” on the case within 15 calendar days. However, frequently this speedy processing means the issuance of an RFE, or worse, a Notice of Intent to Deny (NOID). The bright side is that beneficiaries of more complex cases, such as the EB-1A or the E-2, can treat the initial application sort of like a practice exam. They can use the RFE letter as a form of cheat sheet to see exactly what they must do to “pass” the test by getting an approval. GETTING AN RFE AFTER YOU FILED THE CASE YOURSELF Some noncitizens prefer to petition for an EB-1A, an EB-2 NIW, or an E-2 themselves in order to save money. But, as a colleague once quipped, “Just because I can put a new transmission in my car myself doesn’t mean that I will feel safe driving it afterwards.” There is a reason that people get surgery from people who went to medical school and highlights from licensed beauty professionals. To do otherwise can mean disaster. If you tried to file your immigration case yourself and received a NOID or RFE from USCIS, you can still save your case. Many immigration law firms near you are willing to take you on as a client and respond to your RFE.
Bona Fide Enterprise for E-2 Visa Purposes
Even if you come from a qualifying treaty country and have substantial, investable capital, your USCIS E-2 visa application could be denied if it fails to establish that the proposed or existing business is a bona fide enterprise. As such, an E-2 visa applicant should submit supplemental evidence that the enterprise meets E-2 visa criteria. The USCIS E-2 visa standards require that the enterprise is a real, active, and operating commercial or entrepreneurial venture that produces goods or services for profit. To demonstrate that the investor has the requisite commitment to the enterprise, the E-2 visa applicant might provide USCIS with a detailed description of the activities of the business, as well as financial statements and business reports. Other examples of evidence that may prove to USCIS that the proposed or existing enterprise qualifies as a bona fide venture include the following:
The USCIS requires that an E-2 visa applications be for a bona fide venture in the USA, and not a marginal enterprise. As such, it can be important for you provide them with sufficient documentation to demonstrate that the enterprise is bona fide. A marginal enterprise, as defined by the USCIS, is one that does not have the current or potential capacity to generate more than enough income for the treaty investor and their E-2 visa dependents. A persuasive E-2 visa application should demonstrate that the treaty investor’s income will be more than sufficient for at least five years from the date of the E-2 visa classification. The USCIS could deny an E-2 visa application if it determines that the proposed or existing enterprise is derived from relatively small capital and is intended only to provide a living for the investor and their E-2 dependents. One method of fortifying an E-2 application is by submitting a detailed business plan or executive summary. Additional documentation that may convince the USCIS that a treaty investor business is bona fide, rather than marginal, includes following:
 When you are applying for an employment-based green card, you need to provide the United States Citizenship and Immigration Service (USCIS) with a great deal of supporting evidence. One type of document that generally accompanies an immigration petition of this type is the letter of recommendation.
Foreign nationals who are applying for an EB-1A extraordinary ability or EB-2 national interest waiver green card are often professionals whose potential recommenders have busy jobs and lives. Therefore, an EB-1A or EB-2 NIW beneficiary may be asked to write their own recommendation letters and then present them to their recommender for signature. If you are already paying an immigration lawyer near you to draft your EB-1A or EB-2 NIW petition letter, you might not want to pay extra for them to write letters for your recommenders to put on letterhead and sign. But if your only other option is to write the recommendation letters yourself, how do you do that? This article provides some information on the key parts of a strong letter of recommendation. Parts of an EB-1A or EB-2 NIW Letter of Recommendation A persuasive letter of recommendation for an EB-1A extraordinary ability or EB-2 national interest waiver green card petition should have several key items. Introduction of the Recommender The first paragraph of a EB-1A extraordinary ability or EB-2 national interest waiver recommendation should state the name of the green card applicant and the reason for the letter. Then in that same paragraph, or in the second one, there should be a listing of the qualifications of the recommender. Some relevant information that can be included in the introduction of the recommender are their title, workplace, educational background, and notable accomplishments. These key facts can be useful in persuading a USCIS officer that what is written about the EB-1A extraordinary ability or EB-2 national interest waiver candidate carries some weight. Subsequent Paragraphs Should Relate to the Purpose of the Letter After the recommender is introduced in a letter about an EB-1A extraordinary ability or EB-2 national interest waiver candidate, the next paragraphs should relate to the green card beneficiary’s accomplishments. The letter can include any, or most, of an employment-based green card applicants notable achievements, including their research and citations, original contributions, and awards. If the EB-1A extraordinary ability or EB-2 NIW applicant wants their recommender to describe their leading and critical role in an organization, there is a particular way that these achievements should be written. First, the company should be shown to be notable, such as through its large revenue, awards, or humanitarian efforts. Then, the list of accomplishments of the green card applicant should be specific and measurable, including dollar amounts and percentages. Lastly, they should be shown to have benefitted the organization as a whole. Closing the Letter The final paragraph of a letter of recommendation for an EB-1A extraordinary ability or EB-2 NIW candidate should state that the person is highly deserving of a green card. It should also tell the USCIS adjudicator that the applicant stands out among their peers and will greatly benefit the United States if a green card is approved. When the recommender signs the letter, they should include their title and contact information. Finally, it should be printed on company or university letterhead. Ask for a Sample from an Immigration Attorney Some immigration law firms, such as Gallagher Domanski, are willing to provide a sample of a letter of recommendation to a foreign national. This can be helpful if you decide to draft a letter of recommendation by yourself so that it can be presented to someone for signature. Contact us with your questions about the EB-1A extraordinary ability or EB-2 NIW green card and related letters of recommendation.  When you file a petition or application with USCIS, you would likely want it to be processed as soon as possible. You might even be willing to pay extra to make that happen.
Premium processing is only available for certain immigration transactions. This particular article will be focused on two of them, the EB-1A extraordinary ability green card and the E-2 treaty investor nonimmigrant visa. What is premium processing, and how much does it cost? When a foreign national opts for premium processing of their immigration paperwork, a USCIS adjudicator is required to review and act on their petition or application within 15 calendar days. In fact, USCIS states on their website: “Specifically, we guarantee processing within 15 calendar days to those who choose to use this service, or we will refund the premium processing service fee and will continue with expedited processing.” Premium processing is achieved by filling out Form I-907, Request for Premium Processing, and including it with the application package with other relevant forms and supporting evidence. It is available for some, but not all, submissions of the Form I-129, Petition for Nonimmigrant Worker, or the Form I-140, Immigrant Petition for Alien Workers. With the exception of those filers of the Form I-129 who are requesting H-2B or R-1 nonimmigrant status, as of October 19, 2020, all those asking for premium processing must pay $2,500 for that privilege. This amount has been raised from $1,440 to $2,500. Current Premium Processing Issues for EB-1A and E-2 Both the EB-1A extraordinary ability green card and the E-2 treaty investor nonimmigrant visa require a foreign national to supply a great deal of evidence with the appropriate forms. This means that a USCIS adjudicator must work quickly to address the documents within 15 calendar days. Acting on an EB-1A or E-2 within 15 days With the USCIS service center backlog caused in part by factors relating to COVID-19 precautions in 2020 and 2021, officers are hard-pressed to handle premium processing requests on voluminous EB-1A and E-2 immigration packages. But they must act within 15 calendar days. One way that USCIS adjudicators can act on a premium processing request within the 15-day parameters is to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). When this happens, and it occurs a lot, a foreign national may feel that they have wasted the extra $2,500 filing fee. Responding to an RFE or NOID When working with an immigration lawyer, a foreign national may need to pay extra for the extra attorney time spent on responding to the RFE or NOID. Additionally, diligent or busy counsel may not be able to submit additional documents to USCIS for a month or more. Essentially, these days paying for premium processing may not be worth the extra fees. However, sometimes an RFE or NOID can work to the advantage of the applicant, in that the USCIS letter indicates exactly what evidence is lacking. If one pays the extra $2,500 for premium processing, the almost guaranteed RFE or NOID letter may provide a “cheat sheet” that clues the applicant and their attorney on how to get their particular case approved. Talk to an Immigration Attorney about Premium Processing If you are not sure about whether premium processing is the right choice for your EB-1A extraordinary ability green card petition or your E-2 treaty investor nonimmigrant visa, have a conversation with an immigration lawyer near you. At Gallagher Domanski, we do not charge clients for responses to an RFE or NOID, so you can use this information on weighing your options about filing an I-907, Request for Premium Processing. 
For a second-preference, employment-based green card, as indicated at Part 2, line 1h on the Form I-140, Petition for Alien Worker, to qualify for a national interest waiver (NIW) you must be someone who is a member of the profession holding an advanced degree or has exceptional ability. As you do not necessarily have to have a graduate degree or a Ph.D, because you can demonstrate for the United States Citizenship and Immigration Service (USCIS) that you have remarkable attributes that should warrant the grant of an EB-2 NIW green card. Notably, if you have both an advanced degree and exceptional ability, a USCIS adjudicator might be even more apt to approve your I-140 NIW petition. As the EB-2 NIW applicant does not have to have a job offer nor a labor certification, many immigration lawyers who are experienced with this type of green card generally encourage applicants to provide USCIS with as much evidence as possible to show that they are deserving of a national interest waiver. Evidence of Educational Credentials EB-2 NIW applicants can supply more than one form of documentation to evidence their educational credentials before USCIS. Evidence of Advanced Degree As stated on the USCIS webpage on the National Interest Waiver, you need to provide “an official academic record,” such as a diploma or a university transcript. If the advanced degree was earned at a foreign college, it can be prudent to obtain a foreign credential evaluation, so that it is clear to USCIS that the education is indeed postgraduate. For example, the master’s degree awarded by some foreign universities would be a bachelor’s degree in the United States. Although USCIS asks for the official academic record that shows the advanced degree for those who have one, many immigration attorneys like to attach documents for both the graduate and the undergraduate degrees. Proof of Undergraduate Degree Plus Experience Persons who have a U.S. bachelor’s degree, or foreign equivalent, can provide their diploma or transcript to USCIS, along with letters from current and former employers that show at least five years of progressive work experience in the field after earning the undergraduate diploma. Ideally, these letters should be printed on letterhead, written by someone in authority at the organization, and provide the foreign national’s title, dates of work, and job description. Having more than five years in the profession, and preferably ten years in the field, can also help to convince USCIS that a foreign national applicant has exceptional ability in the career, as well. Although the USCIS policy states that one can have either an advanced degree or exceptional ability, generally it helps to have both, since the Service will be waiving the requirement of a job offer and labor certification. Proving Exceptional Ability It is of note that, unlike the EB-1A extraordinary ability green card, with the EB-2 NIW, the regulations only ask for exceptional ability. So what is the difference? USCIS, as it states on the National Interest Waiver webpage, defines exceptional ability as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Some immigration attorneys may describe this “degree of expertise” in an introductory paragraph on the EB-2 NIW applicant’s background. Others show this remarkable proficiency in the section of the petition letter that shows that they are well positioned to advance their proposed endeavor in the United States. Get a Free CV/Resume Evaluation Before going through all of the efforts of compiling evidence to accompany the Form I-140 for an EB-2 national interest waiver, it can be beneficial to consult with an experienced NIW lawyer. You can contact us via email and attach your CV/Resume, and our law firm will provide a free evaluation for the appropriateness of an EB-2 NIW for your case. Gallagher Domanski also offers a free ebook of NIW tips that you can get by visiting our website. By filling out the form, you will gain immediate access to the ebook.  For many foreign national professionals who want to live and work permanently in the United States, the prospect of a National Interest Waiver (NIW) green card is appealing. This is because you do not need to have a job offer nor a labor certification to qualify.
One of the factors that the United States Citizenship and Immigration Service (USCIS) considers when deciding whether or not to grant a noncitizen an EB-2 NIW green card is substantial merit. You might be wondering what the term “substantial merit” actually means, as seems to be an ambiguous concept. In this article an EB-2 NIW attorney in the United States explains more about this criterion for lawful permanent residency in this immigration category. Substantial Merit According to Matter of Dhanasar In 2016, the AAO court case, Matter of Dhanasar, provided a three-prong test to determine whether a foreign national might qualify for a second-preference, employment-based green card based on a National Interest Waiver. The three criteria in the test are (1) The proposed endeavor has both substantial merit and national importance; (2) The Beneficiary is well positioned to advance the proposed endeavor; and (3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. According to Dhanasar, substantial merit may be demonstrated “in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education [. . .] Endeavors related to research, pure science, and the furtherance of human knowledge may qualify […]” Dhanasar, 26 I & N Dec. 884, 889. This standard indicated in the case allows for broad latitude in establishing substantial merit, as it suggests a variety of career areas as well as a range of endeavors. Substantial Merit as Helping Humans One method for establishing substantial merit for the purposes of an EB-2 NIW petition is to illustrate how the foreign national’s work benefits the public. Have they conducted medical research, created jobs, made life easier, or taught the public new concepts? Or perhaps an EB-2 NIW applicant might be entertaining audiences in a novel way or is raising the standards in their field through their accomplishments. For a USCIS adjudicator to find that a foreign national’s endeavors have substantial merit, their work does not necessarily have a global impact. Generally, it just needs to have a great deal of virtue. Knowing Substantial Merit When You See It In the 1964 court case, Jacobellis v. Ohio, the suggestion regarding the definition of obscenity was “I know it when I see it.” Although the concept of substantial merit is at the opposite end of the spectrum, you could likely say that you can recognize it when you observe it, as well. If you provide your resume or CV to an immigrant lawyer near you who is highly experienced with EB-2 NIW petitions, they might more readily be able to point out the ways in which your professional endeavors have substantial merit. They can also discuss how you might qualify for lawful permanent residency in this immigration category.  When a foreign national applies for an employment-based green card, such as those for extraordinary ability or that may warrant a national interest waiver, they may want to file for an adjustment of status as well. This dual application is often referred to as concurrent filing.
Whether a noncitizen concurrently files for an EB-1A extraordinary ability or an EB-2 national interest waiver (NIW) green card, they will complete Forms I-140 and I-485 and attach supporting documents. Often an EB-1A or EB-2 NIW applicant will file concurrently with the assistance of an immigration lawyer near them. Concurrent Filing Pros and Cons Ultimately, it is up to the particular employment-based green card applicant whether they want to file their Forms I-140 and I-485 concurrently. Positives to Concurrent Filing Foreign nationals should only file their Form I-140 and I-485 concurrently if they are present in the United States and an immigrant visa is immediately available. By doing so, they can get all of their forms and filing fees out of the way all at the same time. Additionally, if an applicant or petition pays the $2,500 premium processing fee for their EB-1A petition, they may be hoping that their I-140 will be handled quickly, and then USCIS can work on their adjustment of status right away. Additionally, but filing everything right away, the applicant pays the filing fees that are listed at the time and avoids the risk of paying higher fees after the approval of their EB-1A or EB-2 national interest waiver green card. Negatives to Concurrent Filing When a foreign national does not pay for premium processing for their EB-1A or files for an EB-2 NIW, the timeline can be quite lengthy, even sometimes up to 18 months to process their Form I-140. If they file their Forms I-140 and I-485 at the same time, the information on the adjustment of status form may become outdated during the year or more that their green card petition is sitting at a USCIS field office. Another drawback of filing an employment-based green card petition concurrently with adjustment of status documents is the overwhelm. Establishing eligibility for first or second preference status based on extraordinary ability or a national interest waiver is cumbersome by itself. Having to gather all of the necessary documents for the I-485 for the foreign national worker, as well as their derivative beneficiaries, can be too much hassle for some for them to decide on concurrent filing. Consult with an Experienced Legal Professional in Your Area The decision about whether or not to file your EB-1A or EB-2 NIW petition concurrently with your Form I-485 may be entirely up to you. However, it cannot hurt matters to discuss your options with a local immigration lawyer who has experience with employment-based green cards. Local attorneys who handle immigration cases may be more up to date about the latest green card requirements. They may also know sooner when USCIS plans to raise their filing fees. This information can help you to decide whether you not you want to file concurrently.  Because the EB-3 professional green card only requires a foreign national to have a bachelor’s degree to qualify for the immigration benefit, many EB-2 National Interest Waiver (NIW) candidates believe that they likely need a Ph.D., doctoral or professional degree. That thought is actually partially true, but only in limited circumstances. When applying for a National Interest Waiver green card, you only need to have a Ph.D., doctoral, or professional degree if that education is customarily required for your career endeavor. This advanced degree can be a U.S. diploma or a foreign equivalent. If you are unsure about whether or not you might meet the criteria for an EB-2 NIW green card, it is generally a bright idea to schedule a free consultation with an immigration lawyer near you. When an attorney in immigration focuses on a particular type of green card benefit, they can be deeply knowledgeable about the process. Professions that Typically Require a Doctoral Degree Although the designation of doctorate may make it seem like the degree is reserved for medical doctors, this is only one of the professions that usually require a doctorate, Ph.D., or professional degree. Professional Degrees Careers that generally require a professional degree are often those that also mandate that the person become licensed in the field. For example, the immigration attorney who might help you to apply for an EB-2 NIW green card would have both a professional degree, the juris doctor, as well as a license to practice law in one or more of the United States. Another field of work that requires a professional degree is a licensed clinical social worker. Even though someone in this career might not have a Ph.D., they must have a graduate degree, will undergo clinical training, and need to pass a licensure exam. Ph.D. Careers According to the U.S. Bureau of Labor Statistics (BLS), some careers that typically require a doctorate to enter the field in many positions include the following:
Job Outlook in the United States for those with Doctoral Degrees According to data compiled by the BLS, “About 3 percent of all jobs in the United States were in occupations that typically require a doctoral degree (Ph.D.) or first professional degree, such as in law or medicine.” The areas of the United States that have the largest shares of employment in occupations that usually require a doctoral or professional degree include: Washington DC, New York, Massachusetts, Vermont, and Rhode Island. It should be noted; however, that the above parts of the USA have a large number of colleges and universities that employ postsecondary educators. Additionally, states like Massachusetts, for example, have a high concentration of biochemists and biophysicists, and the state’s workforce consists of 4 percent of doctoral or professional degree holders. Consult with a Immigration Attorney Near You about Your NIW Even though the United States Citizenship and Immigration Service (USCIS) allows for persons to self-petition for the EB-2 National Interest Waiver, consulting with an immigration lawyer can be prudent. If you would like a free consultation, or a free CV/resume evaluation, you can contact us at eb2-niw.org.  The USCIS issues more than 360,000 F1 visas to scholars who wish to study in the United States. Many foreign nationals need extra funds to sustain themselves while earning a degree at an American university. If you are studying at a U.S. university on an F1 visa, or you plan to, you may be wondering how to make money when you are not in class. Actually, there are several ways that you can earn a living while in you are in America on an F1 visa. You can also find a way to continue working in the United States after you graduate. Types of employment on an F1 visa There is more than one way to work legally in the United States on an F1 visa. Some prefer to find campus jobs, while others prefer to acquire practical training that they can use in their careers. Curricular Practical Training (CPT) F1 students who need an internship or other form of cooperative education to complete their educational program might consider Curricular Practical Training, or CPT. Within this program, students on an F1 visa can gain work experience within their field of study, so long as it is required by their U.S. university. To be eligible for CPT, foreign students must have been enrolled in school full-time for at least one year in the United States on an F1 visa. Additionally, the student needs to have obtained a job offer related to their academic program before they even apply for a curricular practical training authorization. F1 visa students who are choosing to work through Curricular Practical Training can only work with approved companies that are on the Student and Exchange Visitor Information System (SEVIS) and the Form I-20 list. Therefore, students who want to work outside their major, or for a company that is not approved, should choose another option besides CPT. Working on campus Foreign national students who are not interested in an internship, or are too early in their academic program, might want to get a campus job. Foreign students can make some pocket money by working on campus, as long as they meet certain conditions. In order to maintain F1 status while working in a campus job, foreign university students must meet the following criteria:
Optional Practical Training (OPT) After graduating from an American university program, a foreign national may want to extend their F1 visa a little while longer. Optional Practical Training (OPT) is a bit like Curricular Practical Training (CPT), but there are some differences. Unlike CPT, with OPT the F1 visa holder can complete it either before or after graduation. However, like CPT, the F1 student should have been enrolled in the university for at least one year. Although OPT and CPT jobs should be in the foreign national’s field of study, with OPT the job does not need to be with an approved company from a list STEM-OPT Extension F1 visa holders who have been studying science, technology, engineering, or math may want to consider applying for STEM-OPT. This will allow the foreign national student to explore paid training within their STEM field of study for an additional 24 months beyond their Optional Practical Training. The STEM-OPT Extension is available to foreign students who obtained a bachelors, masters, or doctoral degree in a STEM major from an American university that is approved by the Student and Exchange Visitor Program (SVEP). Even if a student is currently working on an OPT in a non-STEM major, they may be able to get a STEM-OPT extension based on a prior STEM degree from an approved U.S. university. Working outside the university Students who are in the United States on an F1 visa may work away from their college campus in limited circumstances. Those who can show the United States Citizenship and Naturalization Service (USCIS) that they have a “severe economic hardship” may be able to have a part-time position off campus. This type of qualifying hardship must be beyond the control of the student. Thus, money pressures like unexpected medical bills, loss of financial aid, or a sudden tuition and housing increase may make a student eligible to work away from campus. To be allowed to work off campus after experiencing sudden, unexpected financial difficulties, the student must also have been studying with this F1 visa status for one year and must be unable to get a job on campus to relieve their financial stress. Working with an international organization Students who are interested in global studies might find it appealing to work for an international organization. This can be an option for some F1 visa scholars. Like many of the other work options, the job should be in the student’s field of study, and the organization must be listed as eligible for F1 visa students. Examples of qualifying international organizations include:
Spouses and children of F1 visa students Foreign national students who are married and/or have children may wish to have more than one income to support their household. Unfortunately, the spouse of an F1 visa holder can arrive in the United States on an F2 visa, but they cannot legally work in the United States. One option for the spouse of an F1 visa holder is to get an F1 visa themselves and explore some of the authorized work options afforded by this visa. |
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