REFILING YOUR EB-2 NIW CASE

It can feel incredibly frustrating to have filed your EB-2 NIW green card petition and waited the sometimes 18 months of processing time, only to receive a request for more evidence (RFE) or a Notice of Intent to Deny (NOID). Worse still is when you are diligent in responding to the RFE or NOID, and then you get denied by USCIS.

As with most failures; however, you can learn something from the green card denial. Either you can use the information gathered from USCIS to refile your case, or you can hire a new or different lawyer to do it for you.

Learning from an RFE 
Since  premium processing on the EB-2 NIW green card petition is only available to a limited number of cases, you may not receive your RFE from USCIS until after about 18 months of processing time. After you respond to the RFE, if you receive a denial of your green card petition, you can still use the RFE letter as a bit of a “cheat sheet.”

Now you know what USCIS said was lacking in your original petition and the examples of evidence that you might provide to make the EB-2 NIW case approvable. So when you refile you can combine all of the evidence from both the original NIW petition and the RFE response.

Speak Their Language
Another goldmine that can be excavated from an RFE letter from USCIS is specific language. If USCIS cites a specific court holding or statute when stating that your EB-2 NIW is deficient, you can use that same language in your petition letter when you refile.

For example, here is a sample paragraph from an actual EB2 NIW green card RFE letter:
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“Please submit evidence to establish that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. This balance was described in Dhanasar as on one hand protecting the domestic labor supply through the creation of the labor certification process, while on the other hand recognizing that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. USCIS may evaluate factors including, but not limited to, the following:

• Whether, in light of the nature of the beneficiary's qualifications or proposed endeavor, it would be impractical either for the beneficiary to secure a job offer or for the petitioner to obtain a labor certification;
• Whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the beneficiary's contributions;
• Whether the national interest in the beneficiary's contributions is sufficiently urgent to warrant forgoing the labor certification process;
• Whether the beneficiary's endeavor may lead to potential creation of jobs; and
• Whether the beneficiary is self-employed in a manner that generally does not adversely affect U.S. workers.”

Therefore, since USCIS gave you a “gift” in the form of bullet points, you can have headings in your refiled EB-2 NIW petition letter based on each of the five factors above that apply to you. 

Asking an Immigration Attorney to Refile Your EB2 NIW Case
If you filed the first case on your own, you might consider consulting with an immigration attorney on your second EB-2 NIW green card filing. Often it is more difficult for an immigration lawyer to save your case by responding to your RFE than it is for her to rework and refile the NIW case. 



Photo by Daria Sannikova from Pexels

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